EXHIBIT 4.1
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WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
and
CWCAPITAL ASSET MANAGEMENT LLC
Special Servicer
and
WELLS FARGO BANK, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2007
------------------------------
$3,823,853,068
Commercial Mortgage Pass-Through Certificates
Series 2007-C32
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance of the Trust Fund by Trustee.........................
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.................................
Section 2.04 Representations and Warranties of Depositor.....................
Section 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I and
Additional Interest Grantor Trust by Trustee...................
Section 2.06 Issuance of the REMIC I Regular Interests; Execution,
Authentication and Delivery of Class R-I Certificates..........
Section 2.07 Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee............................................
Section 2.08 Execution, Authentication and Delivery of REMIC II
Certificates and Class A-4FL and Class A-MFL Regular
Interests; Acceptance of Class A-4FL Grantor Trust and
Class A-MFL Grantor Trust by Trustee...........................
Section 2.09 Issuance of Class A-4FL Grantor Trust Interest and Class
A-MFL Grantor Trust Interest; Acceptance of Class A-4M
Trust and Class A-MM Trust by Trustee; Execution,
Authentication and Delivery of the Class A-4FL and A-MFL
Certificates...................................................
Section 2.10 Execution, Authentication and Delivery of Class Z
Certificates...................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 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; Reserve Accounts...........................
Section 3.04 Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion Distribution
Account, Swap Collateral Account, Class A-4M Trust
Account, Class A-MM Trust Account and Floating Rate
Accounts.......................................................
Section 3.05 Permitted Withdrawals from the Certificate Account,
Distribution Account, Interest Reserve Account,
Additional Interest Account, Gain-on-Sale Reserve
Account, Companion Distribution Account, Floating Rate
Accounts, Interest Shortfall Account, Class A-4M Trust
Account and Class A-MM Trust Account...........................
Section 3.06 Investment of Funds in the Servicing Accounts, Reserve
Accounts, Certificate Account, Floating Rate Accounts,
Funding Accounts, Interest Reserve Account, Distribution
Account, Companion Distribution Account, Additional
Interest Account, Class A-4M Trust Account, Class A-MM
Trust Account, Gain-on-Sale Reserve Account, REO Account
and Interest Shortfall Account.................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..........................................
Section 3.08 Enforcement of Alienation Clauses...............................
Section 3.09 Realization Upon Defaulted Mortgage Loans; Required
Appraisals.....................................................
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files..........................................................
Section 3.11 Servicing Compensation..........................................
Section 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports....................................
Section 3.13 Annual Reports on Assessment of Compliance with Servicing
Criteria and Annual Statement as to Compliance.................
Section 3.14 Attestation by Independent Public Accountants...................
Section 3.15 Access to Certain Information...................................
Section 3.16 Title to REO Property; REO Account..............................
Section 3.17 Management of REO Property......................................
Section 3.18 Resolution of Defaulted Mortgage Loans and REO Properties.......
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer.......................................................
Section 3.20 Modifications, Waivers, Amendments and Consents.................
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.......................................
Section 3.22 Sub-Servicing Agreements........................................
Section 3.23 Representations and Warranties of Master Servicer and
Special Servicer...............................................
Section 3.24 Sub-Servicing Agreement Representation and Warranty.............
Section 3.25 Designation of Controlling Class Representative.................
Section 3.26 Companion Paying Agent..........................................
Section 3.27 Companion Register..............................................
Section 3.28 Future Debt Secured by Interests in Related Mortgagors..........
Section 3.29 Certain Matters Relating to the Future Securitization of
the Pari Passu Companion Loans.................................
Section 3.30 Swap Contracts..................................................
Section 3.31 Put Agreements..................................................
Section 3.32 Litigation Control..............................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions...................................................
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File....................................................
Section 4.03 P&I Advances....................................................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest;
Allocation of Appraisal Reduction Amounts......................
Section 4.05 Calculations....................................................
Section 4.06 Use of Agents...................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates................................................
Section 5.02 Registration, Transfer and Exchange of Certificates.............
Section 5.03 Book-Entry Certificates.........................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 5.05 Persons Deemed Owners...........................................
Section 5.06 Class A-4M and Class A-MM Conversions...........................
Section 5.07 Issuance of New Certificates....................................
Section 5.08 Class A-4M and Class A-MM Call Options..........................
Section 5.09 Optional Mergers relating to the Class A-4M and Class
A-MM Certificates..............................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.......................................................
Section 6.02 Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer............................
Section 6.03 Limitation on Liability of Depositor, Master Servicer and
Special Servicer...............................................
Section 6.04 Resignation of Master Servicer and the Special Servicer.........
Section 6.05 Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer..............................
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.........................................
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer................................................
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer...............................................
Section 6.09 Designation of Special Servicer by the Controlling Class
and Controlling Holders........................................
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate....................................................
Section 6.11 The Controlling Class Representative............................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...............................................
Section 7.02 Trustee to Act; Appointment of Successor........................
Section 7.03 Notification to Certificateholders and Companion Holders........
Section 7.04 Waiver of Events of Default.....................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default............
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee...............................................
Section 8.02 Certain Matters Affecting 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 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 Appointment of Authenticating Agents............................
Section 8.13 Access to Certain Information...................................
Section 8.14 Appointment of REMIC Administrators.............................
Section 8.15 Representations and Warranties of Trustee.......................
Section 8.16 Appointment of the Paying Agent.................................
Section 8.17 Reports to the Securities and Exchange Commission;
Available Information..........................................
Section 8.18 Maintenance of Mortgage File....................................
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.................................................
Section 9.02 Additional Termination Requirements.............................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration............................................
Section 10.02 Administration of the Grantor Trusts............................
Section 10.03 Class A-4M Trust Administration.................................
Section 10.04 Class A-MM Trust Administration.................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.......................................................
Section 11.02 Recordation of Agreement; Counterparts..........................
Section 11.03 Limitation on Rights of Certificateholders......................
Section 11.04 Governing Law...................................................
Section 11.05 Notices.........................................................
Section 11.06 Severability of Provisions......................................
Section 11.07 Grant of a Security Interest....................................
Section 11.08 Streit Act......................................................
Section 11.09 Successors and Assigns; Beneficiaries...........................
Section 11.10 Article and Section Headings....................................
Section 11.11 Notices to Rating Agencies......................................
Section 11.12 Complete Agreement..............................................
EXHIBITS
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Exhibit Description Exhibit No. Section Reference
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Form of Class A-1 Certificate A-1 Section 1.01 Definition of "Class A-1
Certificate"
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Form of Class A-2 Certificate A-2 Section 1.01 Definition of "Class A-2
Certificate"
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Form of Class A-PB Certificate A-3 Section 1.01 Definition of "Class A-PB
Certificate"
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Form of Class A-3 Certificate A-4 Section 1.01 Definition of "Class A-3
Certificate"
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Form of Class A-4M Certificate A-5 Section 1.01 Definition of "Class A-4M
Certificate"
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Form of Class A-4MS Certificate A-6 Section 1.01 Definition of "Class A-4MS
Certificate"
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Form of Class A-1A Certificate A-7 Section 1.01 Definition of "Class A-1A
Certificate"
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Form of Class IO Certificate A-8 Section 1.01 Definition of "Class IO
Certificate"
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Form of Class A-MM Certificate A-9 Section 1.01 Definition of "Class A-MM
Certificate"
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Form of Class A-MMS Certificate A-10 Section 1.01 Definition of "Class A-MMS
Certificate"
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Form of Class A-J Certificate A-11 Section 1.01 Definition of "Class A-J
Certificate"
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Form of Class B Certificate A-12 Section 1.01 Definition of "Class B
Certificate"
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Form of Class C Certificate A-13 Section 1.01 Definition of "Class C
Certificate"
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Form of Class D Certificate A-14 Section 1.01 Definition of "Class D
Certificate"
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Form of Class E Certificate A-15 Section 1.01 Definition of "Class E
Certificate"
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Form of Class F Certificate A-16 Section 1.01 Definition of "Class F
Certificate"
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Form of Class A-4FL Certificate A-17 Section 1.01 Definition of "Class A-4FL
Certificate"
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Form of Class A-MFL Certificate A-18 Section 1.01 Definition of "Class A-MFL
Certificate"
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Form of Class G Certificate A-19 Section 1.01 Definition of "Class G
Certificate"
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Form of Class H Certificate A-20 Section 1.01 Definition of "Class H
Certificate"
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Form of Class J Certificate A-21 Section 1.01 Definition of "Class J
Certificate"
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Form of Class K Certificate A-22 Section 1.01 Definition of "Class K
Certificate"
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Form of Class L Certificate A-23 Section 1.01 Definition of "Class L
Certificate"
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Form of Class M Certificate A-24 Section 1.01 Definition of "Class M
Certificate"
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Form of Class N Certificate A-25 Section 1.01 Definition of "Class N
Certificate"
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Form of Class O Certificate A-26 Section 1.01 Definition of "Class O
Certificate"
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Form of Class P Certificate A-27 Section 1.01 Definition of "Class P
Certificate"
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Form of Class Q Certificate A-28 Section 1.01 Definition of "Class Q
Certificate"
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Form of Class S Certificate A-29 Section 1.01 Definition of "Class S
Certificate"
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Form of Class R-I Certificate A-30 Section 1.01 Definition of "Class R-I
Certificate"
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Form of Class R-II Certificate A-31 Section 1.01 Definition of "Class R-II
Certificate"
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Form of Class Z Certificate A-32 Section 1.01 Definition of "Class Z
Certificate"
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Mortgage Loan Schedule B Section 1.01 Definition of "Mortgage Loan
Schedule"
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Schedule of Exceptions to Mortgage File C-1 Section 2.02(a)
Delivery
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Form of Custodial Certification C-2 Section 2.02(b)
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Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request for
Release"; Section 2.03(b); Section 3.10(a);
and Section 3.10(b)
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Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request for
Release"; Section 3.10(b)
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Calculation of NOI/Debt Service Coverage E Section 1.01 Definition of "Net Operating
Ratios Income"
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Form of Transferor Certificate F-1 Section 5.02(b)
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Form of Transferee Certificate for QIBs F-2 Section 5.02(b)
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Form of Transferee Certificate for Non-QIBs F-3 Section 5.02(b)
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Form of Transferee Certificate for Transfers F-4 Section 5.02(b)
Pursuant to Regulation S
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Form of Transferee Certificate for Exchange F-5 Section 1.01 Definition of "Exchange
or Transfer From Domestic Global Certificate"; Section 5.02(b)
Certificate to Regulation S Global
Certificate During the Restricted Period
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Form of Transferee Certificate for Exchange F-6 Section 1.01 Definition of "Exchange
or Transfer From Domestic Global Certificate"; Section 5.02(b)
Certificate to Regulation S Global
Certificate After the Restricted Period
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Form of Transferee Certificate G Section 5.02(c)
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Form of Transfer Affidavit and Agreement H-1 Section 5.02(d)(i)(B)
Pursuant to Section 5.02(d)(i)(B)
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Form of Transferor Certificate Pursuant to H-2 Section 5.02(d)(i)(D)
Section 5.02(d)(i)(D)
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Form of Notice and Acknowledgment I-1 Section 6.09
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Form of Acknowledgment of Proposed Special I-2 Section 6.09
Servicer
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List of Earnout and Holdback Mortgage Loans J Section 3.20(j)
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Form of Certificateholder Confirmation K-1 Section 1.01 Definition of "Privileged
Certificate Request by Beneficial Holder Person"; Section 3.15(a)
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Form of Prospective Purchaser Certificate K-2 Section 1.01 Definition of "Privileged
Person"; Section 3.15(a)
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Initial Companion Holders L Section 3.27
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Form of Purchase Option Notice M Section 3.18(e)
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Form of Defeasance Certificate N Section 3.20(h)
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Form of Depositor Certification O Section 8.17(k)(v); Section 8.17(n)
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Form of Trustee Certification P Section 8.17(n)
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Form of Master Servicer Certification Q-1 Section 8.17(n)
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Form of Special Servicer Certification Q-2 Section 8.17(n)
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Class A-PB Planned Principal Balance Schedule R Section 1.01 Definition of "Class A-PB
Planned Principal Balance"
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Relevant Servicing Criteria S Section 1.01 Definition of "Relevant
Servicing Criteria"; Section 3.13(a)
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[Reserved] T
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Additional Form 10-D Disclosure U Section 8.17(i)
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Additional Disclosure Notification V Section 1.01 Definition of "Additional
Disclosure Notification"; Section 8.17(i);
Section 8.17(j); 8.17(k)
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Additional Form 10-K Disclosure W Section 8.17(k)
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Form 8-K Disclosure Information X Section 8.17(j)
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Sub-Servicer List Y Section 3.13(b); Section 3.14;
Section 7.01(a)(xi)
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Tenants-in-Common Transfer Compliance Z Section 1.01 Definition of
"Tenants-In-Common Loan";
Section 3.08(a)(ii)
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Officer's Certificate of Master Servicer AA Section 3.08(a)(ii)
re: Tenants-in-Common Approvals
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POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of June 1, 2007, among WACHOVIA COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC, as Special Servicer, and WELLS FARGO BANK, N.A.,
as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell 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 a trust fund (the "Trust Fund") to be created hereunder,
the primary assets of which will be the Mortgage Loans.
REMIC I
-------
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans (exclusive of that
portion of the interest payments thereon that constitutes Additional Interest)
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 REMIC I. The Class R-I Certificates will represent the sole class
of "residual interest" in REMIC I for purposes of the REMIC Provisions under
federal income tax law.
REMIC II
--------
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The Class R-II Certificates will evidence the sole class
of "residual interest" in REMIC II for purposes of the REMIC Provisions under
federal income tax law. For federal income tax purposes, each Class of Regular
Certificates and the Class A-4FL Regular Interest and Class A-MFL Regular
Interest will be designated as a separate "regular interest" in REMIC II for
purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the Class or Component designation,
the original REMIC I Principal Balance for each corresponding REMIC I Regular
Interest (each, a "Corresponding REMIC I Regular Interest"), the Corresponding
Components of the Class IO Certificates (the "Corresponding Components") and the
Original Class Principal Balance for each Class of Sequential Pay Certificates
(the "Corresponding Certificates").
Corresponding Certificates Original Class Corresponding Original REMIC I Corresponding
Principal REMIC I REMIC I Pass- Components of
Balance Regular Principal Through Class IO
Interests (1) Balance Rate Certificates (1)
- ---------------------------- -------------- ------------- ------------- ------- ----------------
Class A-1 $ 25,707,000 LA-1 $ 25,707,000 (2) IO-A-1
Class A-2 $ 946,379,000 LA-2 $ 946,379,000 (3) IO-A-2
Class A-PB $ 62,827,000 LA-PB $ 62,827,000 (4) IO-A-PB
Class A-3 $ 948,589,000 LA-3 $ 948,589,000 (4) IO-A-3
Class A-4FL Regular Interest $ 250,000,000 LA-4FL $ 250,000,000 (5) IO-A-4FL
Class A-1A $ 443,196,000 LA-1A $ 443,196,000 (4) IO-A-1A
Class A-MFL Regular Interest $ 382,385,000 LA-MFL $ 382,385,000 (6) IO-A-MFL
Class A-J $ 253,330,000 LA-J $ 253,330,000 (4) IO-A-J
Class B $ 43,018,000 LB $ 43,018,000 (4) IO-B
Class C $ 47,798,000 LC $ 47,798,000 (4) IO-C
Class D $ 28,679,000 LD $ 28,679,000 (4) IO-D
Class E $ 28,679,000 LE $ 28,679,000 (4) IO-E
Class F $ 38,328,000 LF $ 38,328,000 (4) IO-F
Class G $ 43,018,000 LG $ 43,018,000 (4) IO-G
Class H $ 47,799,000 LH $ 47,799,000 (4) IO-H
Class J $ 52,578,000 LJ $ 52,578,000 (4) IO-J
Class K $ 33,458,000 LK $ 33,458,000 (4) IO-K
Class L $ 19,120,000 LL $ 19,120,000 (7) IO-L
Class M $ 9,559,000 LM $ 9,559,000 (7) IO-M
Class N $ 14,340,000 LN $ 14,340,000 (7) IO-N
Class O $ 9,559,000 LO $ 9,559,000 (7) IO-O
Class P $ 9,560,000 LP $ 9,560,000 (7) IO-P
Class Q $ 9,560,000 LQ $ 9,560,000 (7) IO-Q
Class S $ 76,476,068 LS $ 76,476,068 (7) IO-S
- ------------
(1) The REMIC I Regular Interest and the Component of the Class IO
Certificates that corresponds to any particular Class of Regular
Certificates (other than the Class IO Certificates) or the Class A-4FL and
Class A-MFL Regular Interests, as applicable, also correspond to each
other and, accordingly, constitute the Corresponding REMIC I Regular
Interest and the Corresponding Component (if any), respectively, with
respect to each other.
(2) 5.686%.
(3) The Class A-2 Certificate Pass-Through Rate will be equal to the Weighted
Average Net Mortgage Rate less 0.005%.
(4) The Weighted Average Net Mortgage Rate.
(5) REMIC I Regular Interest LA-4FL does not correspond to any Class of
Certificates, but rather corresponds to the Class A-4FL Regular Interest.
(6) REMIC I Regular Interest LA-MFL does not correspond to any Class of
Certificates, but rather corresponds to the Class A-MFL Regular Interest.
(7) Capped at the Weighted Average Net Mortgage Rate.
The portion of the Trust Fund consisting of Additional Interest and
amounts held from time to time in the Additional Interest Account that represent
Additional Interest shall be treated as a grantor trust (the "Additional
Interest Grantor Trust") for federal income tax purposes. The Class Z
Certificates represent undivided beneficial interests in the Additional Interest
Grantor Trust. The Class A-4FL Regular Interest, the Class A-4FL Swap Contract,
the Class A-4FL Floating Rate Account and the proceeds thereof shall be treated
as a separate grantor trust (the "Class A-4FL Grantor Trust") for federal income
tax purposes. The Class A-4FL Grantor Trust Interest and, to the extent issued,
the Class A-4FL Certificates represent undivided beneficial interests in the
Class A-4FL Grantor Trust. The Class A-4M Certificates and Class A-4MS
Certificates will collectively represent all of the beneficial ownership
interest in the portion of the Trust Fund that consists of their pro rata
portion of the Class A-4FL Grantor Trust Interest, the Class A-4M Put Agreement,
the Class A-4M Trust Account and the Class A-4M Funding Account and the proceeds
thereof (the "Class A-4M Trust"). 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 another grantor trust (the "Class A-MFL Grantor
Trust") for federal income tax purposes. The A-MFL Grantor Trust Interest and,
to the extent issued, the Class A-MFL Certificates represent undivided
beneficial interests in the A-MFL Grantor Trust. The Class A-MM Certificates and
Class A-MMS Certificates will collectively represent all of the beneficial
ownership interest in the portion of the Trust Fund that consists of their pro
rata portion of the Class A-MFL Grantor Trust Interest, the Class A-MM Put
Agreement, the Class A-MM Trust Account, the Class A-MM Funding Account and the
proceeds thereof (the "Class A-MM 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 maintain their respective status as a "grantor
trust" and that the portions of the Trust Fund consisting of the Class A-4M
Trust and the Class A-MM Trust maintain their respective status as a partnership
under federal income tax law and not be treated as part of either REMIC I or
REMIC II.
Each of the mortgage loans referred to in this Agreement as the
Beacon D.C. & Seattle Pool Pari Passu Companion Loan, the ING Hospitality Pool
Pari Passu Companion Loan, the DDR Southeast Pool Pari Passu Companion Loans,
the Two Herald Square Subordinate Companion Loan, the 17 Battery Place South
Subordinate Companion Loan, the Bunge North America Subordinate Companion Loans,
the Centerside II Subordinate Companion Loan, the La Jolla Centre I Subordinate
Companion Loan, the La Jolla Centre II Subordinate Companion Loan and the
Courtyard by Marriott - Philadelphia, PA Subordinate Companion Loan, (each, a
"Companion Loan" and, collectively, the "Companion Loans") are not and will not
be part of the Trust Fund but are secured by corresponding Mortgages that secure
certain related Mortgage Loans that are identified on the Mortgage Loan Schedule
as the Beacon D.C. & Seattle Pool Loan (loan number 1), the ING Hospitality Pool
Loan (loan number 2), the DDR Southeast Pool Loan (loan number 3), the Two
Herald Square Loan (loan number 4), the 17 Battery Place South Loan (loan number
8), the Bunge North America Loan (loan number 100), the Centerside II Loan (loan
number 10), the La Jolla Centre I Loan and (loan number 15), the La Jolla Centre
II Loan (loan number 18) and the Courtyard by Marriott - Philadelphia, PA Loan
(loan number 26) (each, a "Co-Lender Loan" and collectively, the "Co-Lender
Loans") that are part of the Trust Fund.
The Beacon D.C. & Seattle Pool Loan and the Beacon D.C. & Seattle
Pool Pari Passu Companion Loan are pari passu in right of entitlement with each
other. The ING Hospitality Pool Loan and the ING Hospitality Pool Pari Passu
Companion Loan are pari passu in right of entitlement with each other. The DDR
Southeast Pool Loan and the DDR Southeast Pool Pari Passu Companion Loans are
pari passu in right of entitlement with each other. The Bunge North America
Subordinate Companion Loans are subordinate in right of entitlement to the Bunge
North America Loan. The Two Herald Square Subordinate Companion Loan is
subordinate in right of entitlement to the Two Herald Square Loan. The 17
Battery Place South Subordinate Companion Loan is subordinate in right of
entitlement to the 17 Battery Place South Loan. The Centerside II Subordinate
Companion Loan is subordinate in right of entitlement to the Centerside II Loan.
The La Jolla Centre I Subordinate Companion Loan is subordinate in right of
entitlement to the La Jolla Centre I Loan. The La Jolla Centre II Subordinate
Companion Loan is subordinate in right of entitlement to the La Jolla Centre II
Loan. The Courtyard by Marriott - Philadelphia, PA Subordinate Companion Loan is
subordinate in right of entitlement to the Courtyard by Marriott - Philadelphia,
PA. As and to the extent provided herein, each of the Companion Loans (other
than the Non-Serviced Companion Loans) will be serviced and administered in
accordance with this Agreement. Each of the Beacon D.C. & Seattle Pool Loan and
the Beacon D.C. & Seattle Pool Pari Passu Companion Loan will be serviced and
administered in accordance with the pooling and servicing agreement (the "MS
2007-IQ14 Pooling and Servicing Agreement"), dated as of May 1, 2007, by and
among Morgan Stanley Capital I Inc., as depositor (the "MS 2007-IQ14
Depositor"), Wells Fargo Bank, N.A., as master servicer (the "MS 2007-IQ14
Master Servicer"), ARCap Special Servicing Inc., as special servicer (the "MS
2007-IQ14 Special Servicer"), The Bank of New York, as trustee (the "MS
2007-IQ14__Trustee"), pursuant to which the Morgan Stanley Capital I Trust
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ14 were issued and
the trust fund (the "MS 2007-IQ14 Trust Fund") was created. The DDR Southeast
Pool Loan will be serviced by the Master Servicer, Special Servicer and Trustee
pursuant to the "model pooling agreement" referenced in the last paragraph of
Section 3.01(a) hereof. In the event the DDR Southeast Pari Passu Note A-1
Companion Loan is included in a securitization within 6 months of the Closing
Date, servicing of the mortgage loan will be transferred to that securitization
and the DDR Southeast Pool Loan will be serviced pursuant to the related pooling
and servicing agreement. In the event the DDR Southeast Pari Passu Note A-1
Companion Loan is not included in a securitization within 6 months of the
Closing Date, the Master Servicer, Special Servicer and Trustee will continue to
service the DDR Southeast Pool Loan and each related Companion Loan pursuant to
the "model pooling agreement" referenced in the last paragraph of Section
3.01(a) hereof. Amounts attributable to the Companion Loans will not be assets
of the Trust Fund and will be owned by the Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Master 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 words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"17 Battery Place South Intercreditor Agreement": The Intercreditor
and Servicing Agreement, dated as of June 27, 2007, by and between Wachovia
Bank, National Association, as Initial Lead Lender, and MW1-2002, LLC, as
Initial Co-Lender, relating to the 17 Battery Place South Whole Loan.
"17 Battery Place South Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 8 on the Mortgage Loan
Schedule).
"17 Battery Place South Subordinate Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the 17 Battery Place South Loan and
subordinate in right of entitlement to the 17 Battery Place South Loan.
"17 Battery Place South Whole Loan": The 17 Battery Place South
Loan, together with the 17 Battery Place South Subordinate Companion Loan.
"30/360 Basis": The accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates) and the Class A-4FL Regular
Interest and Class A-MFL Regular Interest for any Distribution Date, one month's
interest at the Pass-Through Rate applicable to such Class of Certificates or
the Class A-4FL Regular Interest or Class A-MFL Regular Interest, as applicable,
for such Distribution Date, accrued for the related Interest Accrual Period on
the related Class Principal Balance outstanding immediately prior to such
Distribution Date; and, with respect to the Class IO Certificates for any
Distribution Date, the sum of the Accrued Component Interest for the related
Interest Accrual Period for all of the Components for such Distribution Date.
Accrued Certificate Interest shall be calculated on a 30/360 Basis and, with
respect to any Class of Regular Certificates and the Class A-4FL Regular
Interest and Class A-MFL Regular Interest for any Distribution Date, shall be
deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs. Accrued Certificate Interest with respect to the Class
A-4FL Certificates, the Class A-4M Certificates, the Class A-4MS Certificates,
the Class A-MFL Certificates, the Class A-MM Certificates and the Class A-MMS
Certificates shall be calculated on an Actual/360 Basis and, for any
Distribution Date and any such Class of Certificates, 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 but excluding the
related Distribution Date; provided, however, that if a Class A-4FL Distribution
Conversion or Class A-MFL Distribution Conversion has occurred, Accrued
Certificate Interest with respect to the Class A-4M, Class A-4MS and A-4FL
Certificates shall be the same as for the Class A-4FL Regular Interest and with
respect to the Class A-MM, Class A-MMS and Class A-MFL Certificates shall be the
same as for the Class A-MFL Regular Interest.
"Accrued Component Interest": With respect to each Component of the
Class IO Certificates for any Distribution Date, one month's interest at the
Strip Rate applicable to such Component for such Distribution Date, accrued on
the Component Notional Amount of such Component outstanding immediately prior to
such Distribution Date. Accrued Component Interest shall be calculated on a
30/360 Basis and, with respect to any Component and any Distribution Date, shall
be deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Disclosure Notification": The form of notification,
which is attached hereto as Exhibit V, to be included with any Additional Form
10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure
Information.
"Additional Form 10-D Disclosure": As defined in
Section 8.17(i).
"Additional Form 10-K Disclosure": As defined in
Section 8.17(k).
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Account": The segregated account, accounts or
subaccounts created and maintained by the Trustee pursuant to Section 3.04(d)
which shall be entitled "Wells Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32, Additional Interest
Account." The Additional Interest Account shall not be an asset of either REMIC
I or REMIC II.
"Additional Interest Grantor Trust": That certain "grantor trust"
(within the meaning of the Grantor Trust Provisions), the assets of which are
the Additional Interest Grantor Trust Assets.
"Additional Interest Grantor Trust Assets": The segregated pool of
assets consisting of (i) any Additional Interest with respect to the ARD Loans
after their respective Anticipated Repayment Dates and (ii) amounts held from
time to time in the Additional Interest Account.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Servicer": Each Affiliate of the Master Servicer that
services any of the Mortgage Loans and each Person who is not an Affiliate of
the Master Servicer, other than the Special Servicer or the Trustee, who
services 10% or more of the Mortgage Loans.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Liquidation Fees and, in accordance with Sections 3.03(d) and 4.03(d),
interest payable to the Master Servicer and/or the Trustee on Advances (to the
extent not offset by Penalty Interest and late payment charges), the cost of
contracting with a Determination Party as set forth in Section 2.03 and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the first sentence of Section 3.12(a) (and not
otherwise paid from Penalty Interest and late payment charges), as well as
(without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (ix), (x), (xiii), (xiv), (xv) and
(xxi) of Section 3.05(a) out of general collections on the Mortgage Loans and
any REO Properties on deposit in the Certificate Account or (y) pursuant to
clause (ii) or any of clauses (iv) through (vi) of Section 3.05(b) out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Distribution Account; provided that for purposes of the allocations
contemplated by Section 4.04, no such expense shall be deemed to have been
incurred by the Trust Fund until such time as the payment thereof is actually
made from the Certificate Account or the Distribution Account, as the case may
be.
"Additional Yield Amount": (a) With respect to any Distribution Date
and any Class of Regular Certificates (other than each Class of the Class IO
Certificates and any Excluded Class) and the Class A-4FL Regular Interest and
Class A-MFL Regular Interest entitled to distributions of principal with respect
to Loan Group 1 pursuant to Section 4.01(a) on such Distribution Date (provided
that a Yield Maintenance Charge and/or Prepayment Premium was actually collected
on a Mortgage Loan or an REO Loan in such Loan Group during the related
Collection Period), the product of (a) such Yield Maintenance Charge and/or
Prepayment Premium multiplied by (b) a fraction, which in no event will be
greater than one, the numerator of which is equal to the positive excess, if
any, of (i) the Pass-Through Rate for such Class of Regular Certificates or the
Class A-4FL Regular Interest or Class A-MFL Regular Interest then receiving
principal over (ii) the related Discount Rate, and the denominator of which is
equal to the positive excess, if any, of (i) the Mortgage Rate for such Mortgage
Loan or REO Loan, as the case may be, over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is equal to the amount of
principal distributable on such Class of Regular Certificates or the Class A-4FL
Regular Interest or Class A-MFL Regular Interest on such Distribution Date
pursuant to Section 4.01(a) with respect to Loan Group 1, and the denominator of
which is equal to the Loan Group 1 Principal Distribution Amount for such
Distribution Date.
(b) With respect to any Distribution Date and any Class of Regular
Certificates (other than each Class of the Class IO Certificates and any
Excluded Class) and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest entitled to distributions of principal with respect to
Loan Group 2 pursuant to Section 4.01(a) on such Distribution Date
(provided that a Yield Maintenance Charge and/or Prepayment Premium was
actually collected on a Mortgage Loan or an REO Loan in such Loan Group
during the related Collection Period) the product of (a) such Yield
Maintenance Charge and/or Prepayment Premium multiplied by (b) a fraction,
which in no event will be greater than one, the numerator of which is
equal to the positive excess, if any, of (i) the Pass-Through Rate for
such Class of Regular Certificates or the Class A-4FL Regular Interest or
Class A-MFL Regular Interest then receiving principal over (ii) the
related Discount Rate, and the denominator of which is equal to the
positive excess, if any, of (i) the Mortgage Rate for such Mortgage Loan
or REO Loan, as the case may be, over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is equal to the
amount of principal distributable on such Class of Regular Certificates or
the Class A-4FL Regular Interest or Class A-MFL Regular Interest on such
Distribution Date pursuant to Section 4.01(a) with respect to Loan Group
2, and the denominator of which is equal to the Loan Group 2 Principal
Distribution Amount for such Distribution Date.
(c) For purposes of the foregoing, to the extent that payments of
principal on any Class of Regular Certificates (other than the Class IO
Certificates and any Excluded Class) or the Class A-4FL Regular Interest
or Class A-MFL Regular Interest could be made from principal amounts
allocable to Loan Group 1 or principal amounts allocable to Loan Group 2,
the Trustee shall assume that those payments of principal on that Class of
Regular Certificates or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest are made from amounts allocable to each Loan Group, on a
pro rata basis in accordance with the respective amounts allocable to each
Loan Group that were available for payment on that Class of Certificates
or the Class A-4FL Regular Interest or Class A-MFL Regular Interest.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in
Section 10.02(g).
"Adverse REMIC Event": As defined in Section 10.01(h).
"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.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note (other than as a result
of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer prepared in accordance with 12 CFR ss.225.62 and
conducted in accordance with the standards of the American Appraisal Institute
by an Independent Appraiser which Independent Appraiser shall be advised to take
into account the factors specified in Section 3.09(a), any available
environmental, engineering or other third party reports, and other factors that
a prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of
(without duplication), as calculated by the Master Servicer as of the first
Determination Date immediately succeeding the Master Servicer obtaining
knowledge of the occurrence of the Required Appraisal Date if no new Required
Appraisal is required or the date on which a Required Appraisal (or letter
update or internal valuation, if applicable) is obtained and each Determination
Date thereafter so long as the related Mortgage Loan remains a Required
Appraisal Mortgage Loan (i) the Stated Principal Balance of the subject Required
Appraisal Mortgage Loan and any related Non-Serviced Companion Loans related
thereto, (ii) to the extent not previously advanced by or on behalf of the
Master Servicer or the Trustee (or, with respect to Non-Serviced Mortgage Loans,
by the applicable related Non-Serviced Master Servicer), all unpaid interest on
the Required Appraisal Mortgage Loan (including, for such purposes, any related
Pari Passu Companion Loan or any related Subordinate Companion Loan serviced
hereunder) through the most recent Due Date prior to such Determination Date at
a per annum rate equal to the related Net Mortgage Rate and the related fixed
annualized rate of interest scheduled to accrue for the related Non-Serviced
Companion Loans (exclusive of any portion thereof that constitutes Additional
Interest), (iii) all accrued but unpaid Servicing Fees and all accrued but
unpaid Additional Trust Fund Expenses in respect of such Required Appraisal
Mortgage Loan and any related Non-Serviced Companion Loans, plus, with respect
to any Pari Passu Companion Loan (other than the Non-Serviced Companion Loans),
any similar fees and expenses, (iv) all related unreimbursed Advances and any
Advances related to such Required Appraisal Mortgage Loan (including, for such
purposes, any related Pari Passu Companion Loan or any related Subordinate
Companion Loan serviced hereunder) that were reimbursed out of general
collections from the pool of Mortgage Loans (plus accrued interest thereon) made
by or on behalf of the Master Servicer or the Trustee with respect to such
Required Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes and unfunded improvement reserves and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property over (b) an amount equal to the sum of (i) the Required Appraisal Value
and (ii) all escrows, reserves and letters of credit held for the purposes of
reserves (provided such letters of credit may be drawn upon for reserve purposes
under the related Mortgage Loan documents) held with respect to such Required
Appraisal Mortgage Loan. If the Special Servicer fails to obtain a Required
Appraisal (or letter update or internal valuation, if applicable) within the
time limit described in Section 3.09(a), the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the outstanding
principal balance of such Required Appraisal Mortgage Loan (including, for such
purposes, any related Pari Passu Companion Loan or any related Subordinate
Companion Loan serviced hereunder) to be adjusted upon receipt of a Required
Appraisal or letter update or internal valuation, if applicable. In the event a
Mortgagor fails to make a Balloon Payment on a scheduled maturity date and no
Appraisal has been received within 120 days of such failure, the Appraisal
Reduction Amount for the related Mortgage Loan (including, for such purposes,
any related Pari Passu Companion Loan or any related Subordinate Companion Loan
serviced hereunder) will equal 25% of the outstanding principal balance of such
Mortgage Loan (including, for such purposes, any related Pari Passu Companion
Loan or any related Subordinate Companion Loan serviced hereunder), to be
adjusted upon receipt of the new Appraisal. Any Appraisal Reduction Amount for a
Co-Lender Loan shall be allocated as provided in Section 4.04(d).
"Appraisal Reduction Template": The template substantially in the
form of, and containing the information called for in, the downloadable form of
the "Appraisal Reduction Template" 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.
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or letter update
or internal valuation, if applicable) that is contained in the related Servicing
File.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Artesia": Artesia Mortgage Capital Corporation, or its
successor in interest.
"Artesia Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of June 1, 2007, between the Depositor and
Artesia, and relating to the transfer of the Artesia Mortgage Loans to the
Depositor.
"Artesia Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Artesia Mortgage
Loan Purchase 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 document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan for its Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full and no other Liquidation Event has occurred in respect thereof on
or before such Stated Maturity Date) and for any Due Date thereafter as of which
such Mortgage Loan remains outstanding and part of the Trust Fund, the Periodic
Payment of principal and/or interest deemed to be due in respect thereof on such
Due Date that would have been due in respect of such Mortgage Loan on such Due
Date if the related Mortgagor had been required to continue to pay principal in
accordance with the amortization schedule, if any, and to accrue interest at the
Mortgage Rate, in effect on the Closing Date and without regard to the
occurrence of its Stated Maturity Date. With respect to any REO Loan, for any
Due Date therefor as of which the related REO Property remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to be due in
respect thereof on such Due Date that would have been due in respect of the
predecessor Mortgage Loan (or, if applicable, Companion Loans) on such Due Date
had it remained outstanding (or, if the predecessor Mortgage Loan was a Balloon
Mortgage Loan and such Due Date coincides with or follows what had been its
Stated Maturity Date, the Assumed Scheduled Payment that would have been deemed
due in respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to, with respect to each Mortgage Loan, (a) the sum
(including, with respect to the Non-Serviced Mortgage Loans, any amounts
remitted by or advanced pursuant to the Non-Serviced Pooling and Servicing
Agreement) of, without duplication, (i) the aggregate of the amounts on deposit
in the Certificate Account and the Distribution Account (without regard to any
payments made to or received from the Swap Counterparty) as of the close of
business on the last day of the related Collection Period and the amounts
collected by or on behalf of the Master Servicer as of the close of business on
the last day of such Collection Period and required to be deposited in the
Certificate Account; (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates (other than
the Class A-4FL Component Certificates, Class A-4FL Certificates, Class A-MFL
Component Certificates and Class A-MFL Certificates) and the Class A-4FL Regular
Interest and Class A-MFL Regular Interest on such Distribution Date pursuant to
Section 4.03; (iii) the aggregate amount transferred from the REO Account (if
established) to the Certificate Account as of the last day of the related
Collection Period, on or prior to the P&I Advance Date in such month, pursuant
to Section 3.16(c); (iv) the aggregate amount deposited by the Master Servicer
in the Certificate Account for such Distribution Date pursuant to Section 3.19
in connection with Prepayment Interest Shortfalls; and (v) for each Distribution
Date occurring in March, and for the final Distribution Date if the final
Distribution Date occurs in February, the aggregate of the Interest Reserve
Amounts in respect of each Interest Reserve Loan deposited into the Distribution
Account pursuant to Section 3.05(f); and (vi) for the initial Distribution Date
only, the Interest Shortfall Amount deposited into the Distribution Account
pursuant to Section 3.05, net of (b) the portion of the amount described in
subclauses (a)(i) and (a)(iii) of this definition that represents one or more of
the following: (i) collected Periodic Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any amounts payable or
reimbursable to any Person from the (A) Certificate Account pursuant to clauses
(ii)-(xvi), (xx), (xxi) and (xxiii) of Section 3.05(a) or (B) the Distribution
Account pursuant to clauses (ii)-(vii) of Section 3.05(b), (iii) Prepayment
Premiums and Yield Maintenance Charges, (iv) Additional Interest, (v) with
respect to the Distribution Date occurring in February of each year and in
January of each year that is not a leap year (unless, in either case, the
related Distribution Date is the final Distribution Date), the Interest Reserve
Amounts with respect to the Interest Reserve Loans to be withdrawn from the
Certificate Account and remitted to the Trustee for deposit in the Interest
Reserve Account in respect of such Distribution Date and held for future
distribution pursuant to Section 3.04(c), (vi) for the initial Distribution Date
only and each Mortgage Loan originated in June 2007 that has its first Due Date
in July 2007, any interest amounts relating to the period prior to the Cut-Off
Date of such Mortgage Loan payable to the related Mortgage Loan Seller; and
(vii) any amounts deposited in the Certificate Account or the Distribution
Account in error. The Available Distribution Amount will not include any amounts
required to be distributed pursuant to the terms of any Intercreditor Agreement
or this Agreement to a Companion Holder.
"Balloon Mortgage 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 Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Beacon D.C. & Seattle Pool Intercreditor Agreement": The
Intercreditor and Servicing Agreement, dated as of May 23, 2007, by and
between Morgan Stanley Mortgage Capital Inc., as Initial Note A-1, Note A-2
and Note A-3 Holder, Bear Stearns Commercial Mortgage, Inc., as Initial Note
A-4, Note A-5 and Note B-1 Holder and Wachovia Bank, N.A. as Initial Note A-6
and Note A-7 Holder, relating to the Beacon D.C. & Seattle Pool Whole Loan.
"Beacon D.C. & Seattle Pool Loan": That certain Mortgage
Loan which is included in the Trust Fund (identified as loan number 1 on the
Mortgage Loan Schedule).
"Beacon D.C. & Seattle Pool Pari Passu Companion Loan":
That certain mortgage loan evidenced by certain notes, none of which is an
asset of the Trust Fund, secured by the Mortgaged Property securing the
Beacon D.C. & Seattle Pool Loan and pari passu in right of entitlement with
the Beacon D.C. & Seattle Pool Loan.
"Beacon D.C. & Seattle Pool Whole Loan": The Beacon D.C. &
Seattle Pool Loan, together with the Beacon D.C. & Seattle Pool Pari Passu
Companion Loan.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Bunge North America Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 29, 2006, by and between Wachovia Bank,
National Association, as Senior Note A Holder, Caplease Debt Funding, LP, as
Junior Note A Holder, and Caplease Debt Funding, LP, as Note B Holder, relating
to the Bunge North America Whole Loan.
"Bunge North America Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 100 on the Mortgage Loan
Schedule).
"Bunge North America Subordinate Companion Loans": Those certain
mortgage loans evidenced by notes, which are not assets of the Trust Fund,
secured by the Mortgaged Property securing the Bunge North America Loan and
subordinate in right of entitlement to the Bunge North America Loan.
"Bunge North America Whole Loan": The Bunge North America Loan,
together with the Bunge North America Subordinate Companion Loans.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, or the cities in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Columbia,
Maryland), the offices of the Master Servicer (which as of the Closing Date is
Charlotte, North Carolina) or the offices of the Special Servicer (which as of
the Closing Date is Needham, Massachusetts) are located, are authorized or
obligated by law or executive order to remain closed.
"Centerside II Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 27, 2007, by and between Wachovia Bank,
National Association, as Initial Lead Lender, and MW1-2002, LLC, as Initial
Co-Lender, relating to the Centerside II Whole Loan.
"Centerside II Loan": That certain Mortgage Loan which is included
in the Trust Fund (identified as loan number 10 on the Mortgage Loan Schedule).
"Centerside II Subordinate Companion Loan": That certain mortgage
loan evidenced by a note, which is not an asset of the Trust Fund, secured by
the Mortgaged Property securing the Centerside II Loan and subordinate in right
of entitlement to the Centerside II Loan.
"Centerside II Whole Loan": The Centerside II Loan,
together with the Centerside II Subordinate Companion Loan.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32, as
executed by the Certificate Registrar and authenticated and delivered hereunder
by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "Wachovia
Bank, National Association, as Master Servicer for Wells Fargo Bank, N.A., as
Trustee, on behalf of and in trust for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C32." Subject to the related Intercreditor Agreement and taking into
account that (i) each Subordinate Companion Loan is subordinate to its related
Co-Lender Loan to the extent set forth in the related Intercreditor Agreement,
and (ii) the Pari Passu Companion Loans are pari passu with the related
Co-Lender Loan, each subaccount described in the next to last paragraph of
Section 3.04(a) that is part of the Certificate Account shall be for the benefit
of the related Companion Holder, to the extent funds on deposit in such
subaccount are attributed to the related Companion Loan.
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates (other than the Class
A-4FL Component Certificates, Class A-4FL Certificates, Class A-MFL Component
Certificates and Class A-MFL Certificates) or the Class A-4FL Regular Interest
or Class A-MFL Regular Interest is reduced by the amount of Mortgage Deferred
Interest allocable to such Class of Certificates or the Class A-4FL Regular
Interest or Class A-MFL Regular Interest on any Distribution Date.
"Certificate Factor": With respect to any Class of Regular
Certificates, the Class A-4FL Component Certificates, the Class A-4FL
Certificates, the Class A-MFL Component Certificates and the Class A-MFL
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current Class
Principal Balance, or Class IO Notional Amount, as applicable, of such Class of
Regular Certificates or the Class A-4FL Component Certificates, the Class A-4FL
Certificates, the Class A-MFL Component Certificates or the Class A-MFL
Certificates and the denominator of which is the Original Class Principal
Balance or Original Class IO Notional Amount of such Class of Regular
Certificates, the Class A-4FL Component Certificates, the Class A-4FL
Certificates, the Class A-MFL Component Certificates or the Class A-MFL
Certificates, as applicable.
"Certificate Notional Amount": With respect to any Class IO
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then applicable Class IO Notional
Amount.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate multiplied by (b) the then Class Principal Balance
of the Class of Certificates to which such Certificate belongs. The aggregate
Certificate Principal Balance of the Class A-4FL Certificates and the Class
A-4FL Component Certificates shall be equal at all times to the Class Principal
Balance of the Class A-4FL Regular Interest. The aggregate Certificate Principal
Balance of the Class A-MFL Certificates and the Class A-MFL Component
Certificates shall be equal at all times to the Class Principal Balance of the
Class A-MFL Regular Interest. The aggregate Class Principal Balance of the Class
A-4FL Certificates shall be equal to (i) as of the Closing Date, zero and (ii)
as of any day subsequent to the Closing Date, the aggregate principal amount of
Class A-4M and Class A-4MS Certificates subject to a Class A-4M Certificate
Conversion, less (x) any principal distributed to the Holders of the Class A-4FL
Certificates pursuant to Section 4.01(p) and (y) any Realized Losses and
Additional Trust Fund Expenses allocated thereto pursuant to Section 4.04(a).
The aggregate Class Principal Balance of the Class A-MFL Certificates shall be
equal to (i) as of the Closing Date, zero and (ii) as of any day subsequent to
the Closing Date, the aggregate principal amount of Class A-MM and Class A-MMS
Certificates subject to a Class A-MM Certificate Conversion, less (x) any
principal distributed to the Holders of the Class A-MFL Certificates pursuant to
Section 4.01(r) and (y) any Realized Losses and Additional Trust Fund Expenses
allocated thereto pursuant to Section 4.04(a).
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) only a Permitted
Transferee shall be the Holder of a Residual Certificate for any purpose hereof
and, (ii) solely for the purposes of giving any consent, approval or waiver
pursuant to this Agreement that relates to any of the Depositor, any Mortgage
Loan Seller, the Master Servicer, the Special Servicer or the Trustee in its
respective capacity as such (except with respect to amendments or waivers
referred to in Sections 7.04 and 11.01 hereof and any consent, approval or
waiver required or permitted to be made by the Majority Subordinate
Certificateholder or the Controlling Class Representative and any election,
removal or replacement of the Special Servicer or the Controlling Class
Representative pursuant to Section 6.09), any Certificate registered in the name
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer or the Trustee, as the case may be, or any Certificate registered in
the name of any of their respective Affiliates, 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 that relates to it has
been obtained. The Certificate Registrar shall be entitled to request and rely
upon a certificate of the Depositor, the Master Servicer or the Special Servicer
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, 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.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation and each designated
REMIC I Regular Interest.
"Class A Certificates": The Class A-1, Class A-2, Class A-PB, Class
A-3 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-4FL Certificate": Upon a Class A-4M Certificate Conversion,
any one of the Certificates with a "Class A-4FL" designation on the face
thereof, substantially in the form of Exhibit A-17 attached hereto, and
evidencing an undivided beneficial interest in the Class A-4FL Grantor Trust
consisting of its allocable portion (based on the outstanding Class Principal
Balance of the Class A-4FL Certificates and the aggregate outstanding Class
Principal Balance of the Class A-4FL Component Certificates) of the Class A-4FL
Regular Interest, the Class A-4FL Floating Rate Account, the Class A-4FL Swap
Contract and the proceeds thereof.
"Class A-4FL Certificate Interest Distribution Amount": With
respect to any Distribution Date, the pro rata portion of the Class A-4FL
Interest Distribution Amount (based on the Class Principal Balance of the Class
A-4FL Certificates and the aggregate Class Principal Balance of the Class A-4FL
Component Certificates) allocable to the Class A-4FL Certificates.
"Class A-4FL Component Certificate Trust Principal Distribution
Amount": With respect to any Distribution Date, the amount of principal
allocable to the Class A-4FL Component Certificates as part of the Class A-4M
Trust Available Funds pursuant to the Class A-4FL Grantor Trust Waterfall.
"Class A-4FL Component Certificates": The Class A-4M Certificates
and Class A-4MS Certificates.
"Class A-4FL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Swap
Default while the Trustee (or the Paying Agent on its behalf) is pursuing
remedies under the Class A-4M Swap Contract pursuant to Section 3.30 or (ii)
immediately upon and following the termination of the Class A-4FL Swap Contract
until a replacement swap contract is entered into, if any, the conversion of
distributions to the Class A-4FL Component Certificates and the Class A-4FL
Certificates from distributions based, in part, on floating interest payments
from the Swap Counterparty under the Class A-4FL Swap Contract to distributions
based solely on fixed interest distributions in respect of the Class A-4FL
Regular Interest, as specified in Section 4.01(k).
"Class A-4FL Floating Rate Account": A trust account created and
maintained as a separate account (or as a subaccount of the Distribution
Account) by the Paying Agent pursuant to Section 3.04(f), which shall be
entitled "Wells Fargo Bank, N.A., as Trustee, in trust for the registered
Holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass
Through Certificates, Series 2007-C32 Class A-4M, Class A-4MS and Class A-4FL
Certificates, Floating Rate Account" and which must be an Eligible Account (or a
subaccount of an Eligible Account). The Class A-4FL Floating Rate Account shall
not be an asset of either REMIC I or REMIC II formed hereunder.
"Class A-4FL Grantor Trust": That certain "grantor trust" (within
the meaning of the Grantor Trust Provisions), the assets of which are the Class
A-4FL Grantor Trust Assets.
"Class A-4FL Grantor Trust Assets": The segregated pool of assets
consisting of the Class A-4FL Regular Interest, the Class A-4FL Swap Contract,
the Class A-4FL Floating Rate Account and the proceeds thereof, the beneficial
ownership of which is represented by the Class A-4FL Grantor Trust Interest, and
to the extent a Class A-4M Certificate Conversion has occurred, the Class A-4FL
Certificates.
"Class A-4FL Grantor Trust Available Distribution Amount": An amount
equal to, with respect to each Distribution Date, the total of all payments and
other collections on or in respect of the Class A-4FL Regular Interest and the
Class A-4FL Swap Contract that are available for distribution of interest and
principal on the Class A-4FL Component Certificates and the Class A-4FL
Certificates on any Distribution Date less any payments to the Swap Counterparty
under the Class A-4FL Swap Contract and, prior to the occurrence and continuance
of a Swap Default or the termination of the Class A-4FL Swap Contract, any
Prepayment Premiums or Yield Maintenance Charges.
"Class A-4FL Grantor Trust Interest": That certain uncertificated
interest representing the entire beneficial interest in the Class A-4FL Grantor
Trust, less a proportionate part thereof representing any Class A-4FL
Certificates issued in a Class A-4M Certificate Conversion.
"Class A-4FL Grantor Trust Principal Distribution Amount": With
respect to any Distribution Date, the amount of principal distributed to the
Class A-4FL Regular Interest.
"Class A-4FL Grantor Trust Waterfall": On each Distribution Date,
for so long as the Certificate Principal Balances of the Class A-4FL
Certificates and the Class A-4FL Component Certificates have not been reduced to
zero, the order of priority in which the Trustee is required to distribute the
Class A-4FL Grantor Trust Available Distribution Amount from the Class A-4FL
Floating Rate Account pursuant to Section 4.01(p).
"Class A-4FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) amounts received as
Distributable Certificate Interest in respect of the Class A-4FL Regular
Interest for such Distribution Date and (ii) the related Floating Swap Payment,
less (iii) the related Fixed Swap Payment for such Distribution Date.
"Class A-4FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal allocated pursuant
to Section 4.01(p) in respect of the Class A-4FL Regular Interest on such
Distribution Date.
"Class A-4FL Regular Interest": The uncertificated interest in REMIC
II, designated as "Class A-4FL", constituting a "regular interest" in REMIC II
for purposes of the REMIC Provisions and having characteristics attributable
thereto in this Agreement.
"Class A-4FL Swap Contract": A swap contract issued by Wachovia
Bank, National Association relating to the Class A-4FL Component Certificates
and Class A-4FL Certificates, if issued.
"Class A-4M Additional Trustee Fee": For each Distribution
Date, an amount equal to $1,708.33.
"Class A-4M Certificate": Any one of the Certificates with a "Class
A-4M" designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto.
"Class A-4M Certificate Conversion": As defined in Section
5.08(a)(ii).
"Class A-4M Certificate Converting Holder": As defined in
Section 5.08(a)(ii).
"Class A-4M Extension Option": The right of each holder of a Class
A-4M Certificate to extend the Mandatory Tender Date on or prior to each
Distribution Date to one (1) month from the then current Mandatory Tender Date.
"Class A-4M Funding Account": As defined in Section 3.04(l).
"Class A-4M Interest Distribution Amount": With respect to any
Distribution Date and each Class A-4M Certificate with a different Pass-Through
Rate, an amount equal to the sum of (i) the product of the related Pass-Through
Rate applicable to each such Class A-4M Certificate on such Distribution Date
multiplied by the outstanding Certificate Principal Balance of the related Class
A-4M Certificates on such Distribution Date multiplied by the number of days in
the applicable Interest Accrual Period on such Distribution Date divided by 360
and (ii) the Class A-4M Interest Shortfall Amount; provided, that the
Pass-Through Rate applicable to all Class A-4M Certificates on any Distribution
Date is subject to a maximum rate per annum equal to the Class A-4M Maximum
Pass-Through Rate.
"Class A-4M Interest Shortfall Amount": With respect to any
Distribution Date and the Class A-4M Certificates, the excess, if any, of (i)
the Class A-4M Interest Distribution Amount for the immediately preceding
Distribution Date, over (ii) all distributions of interest made with respect to
the Class A-4M Certificates on the immediately preceding Distribution Date.
"Class A-4M Liquidity Fees": With respect to each Distribution Date,
the sum of the Class A-4M Placement Fees and Class A-4M Put Premium payable to
the Placement Agents and Class A-4M Liquidity Provider, respectively.
"Class A-4M Liquidity Provider": Wachovia Bank, National
Association, under the terms of the Class A-4M Put Agreement.
"Class A-4M Maximum Pass-Through Rate": A maximum rate per annum
equal to (a) the Class A-4FL Interest Distribution Amount on such Distribution
Date less (i) the Class A-4FL Certificate Interest Distribution Amount and (ii)
any Class A-4M Liquidity Fee or Class A-4M Additional Trustee Fee for such
Distribution Date, to the extent payable for the related Interest Accrual Period
divided by (b) the aggregate outstanding principal amount of the Class A-4M
Certificates on such Distribution Date divided by (c) the actual (or upon
conversion the deemed) number of days in the related Interest Accrual Period
multiplied by (d) 360.
"Class A-4M Placement Fee": An amount equal to the product of the
Class A-4M Placement Fee Rate and the aggregate outstanding principal amount of
the Class A-4M Certificates as of the first day of the related Interest Accrual
Period calculated on the basis of the actual number of days elapsed in a year of
360 days, in accordance with the terms of the Placement Agreement.
"Class A-4M Placement Fee Rate": A rate of 0.02% per annum that will
be paid to the Placement Agents from amounts on deposit in the Class A-4M Trust
Account, in accordance with the terms of the Placement Agreement.
"Class A-4M Put Agreement": That certain Put Agreement relating to
the Class A-4M Certificates between the Trustee, solely in its capacity as
Trustee, on behalf of the Trust Fund and Wachovia Bank, National Association,
dated as of June 28, 2007.
"Class A-4M Put Premium": An amount equal to (i) the product of the
Class A-4M Put Premium Rate and the aggregate outstanding principal amount of
the Class A-4M Certificates as of the first day of the related Interest Accrual
Period calculated on the basis of the actual days elapsed in a year of 360 days
less (ii) the Class A-4M Additional Trustee Fee.
"Class A-4M Put Premium Rate": A rate of 0.12% per annum that will
be paid to the Class A-4M Liquidity Provider from amounts on deposit in the
Class A-4M Trust Account.
"Class A-4M Trust": As defined in the Preliminary Statement.
"Class A-4M Trust Account": As defined in Section 3.04(j).
"Class A-4M Trust Available Funds": With respect to any Distribution
Date, the sum of (i) the total amount of all principal and/or interest
distributions on or in respect of the Class A-4FL Regular Interest with respect
to such Distribution Date and (ii) the amount, if any, received from the Swap
Counterparty pursuant to the Class A-4FL Swap Contract, less (iii) all amounts
required to be paid to the Swap Counterparty pursuant to the Class A-4FL Swap
Contract for the related Distribution Date, less (iv) the pro rata portion of
(i), (ii) and (iii) allocable to the Class A-4FL Certificates with respect to
such Distribution Date (the amount in (i), (ii), (iii) and (iv) being
distributable in respect of the Class A-4FL Grantor Trust Interest), less (v)
the Class A-4M Liquidity Fees and the Class A-4M Additional Trustee Fees, to the
extent payable for the related Interest Accrual Period.
"Class A-4M Trust Interest Accrual Amount": With respect to any
Distribution Date, an amount equal to the interest accrued during the related
Interest Accrual Period at the Class A-4M Maximum Pass-Through Rate (calculated
without regard to the reduction for Class A-4M Liquidity Fees and Class A-4M
Additional Trustee Fees in clause (a)(ii) of the definition thereof) on the
aggregate Class Principal Balance of the Class A-4M Certificates.
"Class A-4M Trust Interest Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Class A-4M Trust Interest Accrual Amount
for such Distribution Date, and (ii) any Class A-4M Trust Interest Shortfall
Amounts.
"Class A-4M Trust Interest Shortfall Amount": With respect to any
Distribution Date, the excess, if any, of (i) the Class A-4M Trust Interest
Distribution Amount for the immediately preceding Distribution Date, over (ii)
all distributions of interest made with respect to the Class A-4M Certificates
and the Class A-4MS Certificates on the immediately preceding Distribution Date.
"Class A-4MS Certificate": Any one of the Certificates with a "Class
A-4MS" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto.
"Class A-4MS Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (i) the Class A-4M Trust Interest
Distribution Amount on such Distribution Date less (ii) the Class A-4M Interest
Distribution Amount on such Distribution Date less (iii) Class A-4M Liquidity
Fees and the Class A-4M Additional Trustee Fee plus (iv) any Class A-4MS
Interest Shortfall Amount.
"Class A-4MS Interest Shortfall Amount": With respect to any
Distribution Date and the Class A-4MS Certificates, the excess, if any, of (i)
the Class A-4MS Interest Distribution Amount for the immediately preceding
Distribution Date, over (ii) all distributions of interest made with respect to
the Class A-4MS Certificates on the immediately preceding Distribution Date.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-MFL Certificate": Upon a Class A-MM Certificate Conversion,
any one of the Certificates with a "Class A-MFL" designation on the face
thereof, substantially in the form of Exhibit A-18 attached hereto, and
evidencing an undivided beneficial interest in the Class A-MFL Grantor Trust
consisting of its allocable portion (based on the outstanding Class Principal
Balance of the Class A-MFL Certificates and the aggregate outstanding Class
Principal Balance of the Class A-MFL Component Certificates) of the Class A-MFL
Regular Interest, the Class A-MFL Floating Rate Account, the Class A-MFL Swap
Contract and the proceeds thereof.
"Class A-MFL Certificate Interest Distribution Amount": With respect
to any Distribution Date, the pro rata portion of the Class A-MFL Interest
Distribution Amount (based on the Class Principal Balance of the Class A-MFL
Certificates and the aggregate Class Principal Balance of the Class A-MFL
Component Certificates) allocable to the Class A-MFL Certificates.
"Class A-MFL Component Certificate Principal Distribution Amount":
With respect to any Distribution Date, the amount of principal allocable to the
Class A-MFL Component Certificates as part of the Class A-MM Trust Available
Funds pursuant to the Class A-MFL Grantor Trust Waterfall.
"Class A-MFL Component Certificates": The Class A-MM Certificates
and Class A-MMS Certificates.
"Class A-MFL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence and during the continuation of a Class
A-MFL Swap Default while the Trustee (or the Paying Agent on its behalf) is
pursuing remedies under the Class A-MFL Swap Contract pursuant to Section 3.30
or (ii) immediately upon and following the termination of the Class A-MFL Swap
Contract until a replacement swap contract is entered into, if any, the
conversion of distributions to the Class A-MFL Certificates from distributions
based, in part, on floating interest payments from the 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(r).
"Class A-MFL Floating Rate Account": A trust account created and
maintained as a separate account (or as a subaccount of the Distribution
Account) by the Paying Agent pursuant to Section 3.04(f), which shall be
entitled (i) "Wells Fargo Bank, N.A., as Trustee, in trust for the registered
Holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass
Through Certificates, Series 2007-C32 Class A-MM, Class A-MMS and Class A-MFL
Certificates, Floating Rate Account" and which must be an Eligible Account (or a
subaccount of an Eligible Account). The Class A-MFL Floating Rate Account shall
not be an asset of either REMIC I or REMIC II 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 Class
A-MFL Grantor Trust Assets.
"Class A-MFL Grantor Trust Assets": The segregated pool of assets
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, the beneficial
ownership of which is represented by the Class A-MFL Grantor Trust Interest, and
to the extent a Class A-MM Certificate Conversion has occurred, the Class A-MFL
Certificates.
"Class A-MFL Grantor Trust Available Distribution Amount": An amount
equal to, with respect to each Distribution Date, the total of all payments and
other collections on or in respect of the Class A-MFL Regular Interest and the
Class A-MFL Swap Contract that are available for distribution of interest and
principal on the Class A-MFL Component Certificates and the Class A-MFL
Certificates on any Distribution Date less any payments to the Swap Counterparty
under the Class A-MFL Swap Contract and, prior to the occurrence and continuance
of a Swap Default or the termination of the Class A-MFL Swap Contract, any
Prepayment Premiums or Yield Maintenance Charges.
"Class A-MFL Grantor Trust Interest": That certain uncertificated
interest representing the entire beneficial interest in the Class A-MFL Grantor
Trust, less a proportionate part thereof representing any Class A-MFL
Certificates issued in a Class A-MM Certificate Conversion.
"Class A-MFL Grantor Trust Principal Distribution Amount": With
respect to any Distribution Date, the amount of principal distributed to the
Class A-MFL Regular Interest.
"Class A-MFL Grantor Trust Waterfall": On each Distribution Date,
for so long as the Certificate Principal Balances of the Class A-MFL
Certificates and the Class A-MFL Component Certificates have not been reduced to
zero, the order of priority in which the Trustee is required to distribute the
Class A-MFL Grantor Trust Available Distribution Amount from the Class A-MFL
Floating Rate Account pursuant to Section 4.01(r).
"Class A-MFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (i) amounts received as
Distributable Certificate Interest in respect of the Class A-MFL Regular
Interest for such Distribution Date and (ii) the related Floating Swap Payment,
less (iii) the related Fixed Swap Payment for such Distribution Date.
"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(m) in respect of the Class A-MFL Regular Interest on such
Distribution Date.
"Class A-MFL Regular Interest": The uncertificated interest in REMIC
II, designated as "Class A-MFL", constituting a "regular interest" in REMIC II
for purposes of the REMIC Provisions and having characteristics attributable
thereto in this Agreement.
"Class A-MFL Swap Contract": A swap contract issued by Wachovia
Bank, National Association relating to the Class A-MFL Component Certificates
and Class A-MFL Certificates, if issued.
"Class A-MM Additional Trustee Fee": For each Distribution Date, an
amount equal to $1,708.33.
"Class A-MM Certificate": Any one of the Certificates with a "Class
A-MM" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto.
"Class A-MM Certificate Conversion": As defined in Section
5.08(b)(ii).
"Class A-MM Certificate Converting Holder": As defined in Section
5.08(b)(ii).
"Class A-MM Extension Option": With respect to any Distribution
Date, the right of each holder of a Class A-MM Certificate to extend the
Mandatory Tender Date on or prior to each Distribution Date to one (1) month
from the then current Mandatory Tender Date.
"Class A-MM Funding Account": As defined in Section 3.04(m).
"Class A-MM Interest Distribution Amount": With respect to any
Distribution Date and each Class A-MM Certificate with a different Pass-Through
Rate, an amount equal to the sum of (i) the product of the related Pass-Through
Rate applicable to each such Class A-MM Certificate on such Distribution Date
multiplied by the outstanding Certificate Principal Balance of the related Class
A-MM Certificates on such Distribution Date multiplied by the number of days in
the applicable Interest Accrual Period on such Distribution Date divided by 360
and (ii) the Class A-MM Interest Shortfall Amount; provided, that the
Pass-Through Rate applicable to all Class A-MM Certificates on any Distribution
Date is subject to a maximum rate per annum equal to the Class A-MM Maximum
Pass-Through Rate.
"Class A-MM Interest Shortfall Amount": With respect to any
Distribution Date and the Class A-MM Certificates, the excess, if any, of (i)
the Class A-MM Interest Distribution Amount for the immediately preceding
Distribution Date, over (ii) all distributions of interest made with respect to
the Class A-MM Certificates on the immediately preceding Distribution Date.
"Class A-MM Liquidity Fees": With respect to each Distribution Date,
the sum of the Class A-MM Placement Fees and Class A-MM Put Premium payable to
the Placement Agents and Class A-MM Liquidity Provider, respectively.
"Class A-MM Liquidity Provider": Wachovia Bank, National
Association, under the terms of the Class A-MM Put Agreement.
"Class A-MM Maximum Pass-Through Rate": A maximum rate per annum
equal to (a) the Class A-MFL Interest Distribution Amount on such Distribution
Date less (i) the Class A-MFL Certificate Interest Distribution Amount and (ii)
any Class A-MM Liquidity Fee or Class A-MM Additional Trustee Fee for such
Distribution Date, to the extent payable for the related Interest Accrual Period
divided by (b) the aggregate outstanding principal amount of the Class A-MM
Certificates on such Distribution Date divided by (c) the actual number of days
in the related Interest Accrual Period multiplied by (d) 360.
"Class A-MM Put Agreement": That certain Put Agreement relating to
the Class A-MM Certificates between the Trustee, solely in its capacity as
Trustee, on behalf of the Trust Fund and Wachovia Bank, National Association,
dated as of June 28, 2007.
"Class A-MM Placement Fee": An amount equal to the product of the
Class A-MM Placement Fee Rate and the aggregate outstanding principal amount of
the Class A-MM Certificates as of the first day of the related Interest Accrual
Period calculated on the basis of the actual days elapsed in a year of 360 days,
in accordance with the terms of the Placement Agreement.
"Class A-MM Placement Fee Rate": A rate of 0.02% per annum that will
be paid to the Placement Agents from amounts on deposit in the Class A-MM Trust
Account.
"Class A-MM Put Premium": An amount equal to (i) the product of the
Class A-MM Put Premium Rate and the aggregate outstanding principal amount of
the Class A-MM Certificates as of the first day of the related Interest Accrual
Period calculated on the basis of the actual days elapsed in a year of 360 days
less (ii) the Class A-MM Additional Trustee Fee.
"Class A-MM Put Premium Rate": A rate of 0.12% per annum that will
be paid to the Class A-MM Liquidity Provider from amounts on deposit in the
Class A-MM Trust Account.
"Class A-MM Trust": As defined in the Preliminary Statement.
"Class A-MM Trust Account": As defined in Section 3.04(k).
"Class A-MM Trust Available Funds": With respect to any Distribution
Date, 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 amount, if any, received from the Swap
Counterparty pursuant to the Class A-MFL Swap Contract, less (iii) all amounts
required to be paid to the Swap Counterparty pursuant to the Class A-MFL Swap
Contract for the related Distribution Date, less (iv) the pro rata portion of
(i), (ii) and (iii) allocable to the Class A-MFL Certificates with respect to
such Distribution Date (the amount in (i), (ii), (iii) and (iv) being
distributable in respect of the Class A-MFL Grantor Trust Interest), less (v)
the Class A-MM Liquidity Fees and the Class A-MM Additional Trustee Fee, to the
extent payable for the related Interest Accrual Period.
"Class A-MM Trust Interest Accrual Amount": With respect to any
Distribution Date, an amount equal to the interest accrued during the related
Interest Accrual Period at the Class A-MM Maximum Pass-Through Rate (calculated
without regard to the reduction for Class A-MM Liquidity Fees and Class A-MM
Additional Trustee Fees in clause (a)(ii) of the definition thereof) on the
aggregate Class Principal Balance of the Class A-MM Certificates.
"Class A-MM Trust Interest Distribution Amount": With respect to any
Distribution Date, the sum of (i) the Class A-MM Trust Interest Accrual Amount
for such Distribution Date, and (ii) any Class A-MM Trust Interest Shortfall
Amounts.
"Class A-MM Trust Interest Shortfall Amount": With respect to any
Distribution Date, the excess, if any, of (i) the Class A-MM Trust Interest
Distribution Amount for the immediately preceding Distribution Date, over (ii)
all distributions of interest made with respect to the Class A-MM Certificates
and the Class A-MMS Certificates on the immediately preceding Distribution Date.
"Class A-MMS Certificate": Any one of the Certificates with a "Class
A-MMS" designation on the face thereof, substantially in the form of Exhibit
A-10 attached hereto.
"Class A-MMS Interest Shortfall Amount": With respect to any
Distribution Date and the Class A-MMS Certificates, the excess, if any, of (i)
the Class A-MMS Interest Distribution Amount for the immediately preceding
Distribution Date, over (ii) all distributions of interest made with respect to
the Class A-MMS Certificates on the immediately preceding Distribution Date.
"Class A-MMS Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (i) the Class A-MM Trust Interest
Distribution Amount on such Distribution Date less (ii) the Class A-MM Interest
Distribution Amount on such Distribution Date less (iii) Class A-MM Liquidity
Fees and the Class A-MM Additional Trustee Fee plus (iv) any Class A-MMS
Interest Shortfall Amount.
"Class A-PB Certificate": Any one of the Certificates with a "Class
A-PB" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-PB Planned Principal Balance": The planned principal amount
set forth on Exhibit R hereto relating to principal payments for the Class A-PB
Certificates.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO Certificate": Any one of the Certificates with a "Class
IO" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO Notional Amount": With respect to the Class IO
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all the Components.
"Class IO Strip Rate": With respect to any Component for any
Distribution Date, a rate per annum equal to (i) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate for
the Corresponding Certificates.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-27
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates (other than the Class A-4FL Certificates,
Class A-4FL Component Certificates, Class A-MFL Certificates and Class A-MFL
Component Certificates) or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest outstanding from time to time. As of the Closing Date, the
Class Principal Balance of each Class of Sequential Pay Certificates (other than
the Class A-4FL Certificates, Class A-4FL Component Certificates, Class A-MFL
Certificates and Class A-MFL Component Certificates) or the Class A-4FL Regular
Interest or Class A-MFL Regular Interest shall equal the Original Class
Principal Balance thereof. On each Distribution Date, the Class Principal
Balance of each such Class shall be reduced by the amount of any distributions
of principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, and shall be further reduced by the amount of any Realized
Losses and Additional Trust Fund Expenses allocated thereto on such Distribution
Date pursuant to Section 4.04(a). As of the Closing Date, the Class Principal
Balance of each Class of Sequential Pay Certificates (other than the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates and
Class A-MFL Component Certificates) or the Class A-4FL Regular Interest or Class
A-MFL Regular Interest shall equal the Original Class Principal Balance thereof.
Distributions in respect of a reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates (other than the Class A-4FL Certificates, Class A-4FL Component
Certificates, Class A-MFL Certificates and Class A-MFL Component Certificates)
or the Class A-4FL Regular Interest or Class A-MFL Regular Interest shall not
constitute distributions of principal and shall not result in reduction of the
related Class Principal Balance. The Class Principal Balance of the Class A-4FL
Certificates shall be equal at all times to the Class Principal Balance of the
Class A-4FL Regular Interest minus the aggregate Class Principal Balance of the
Class A-4FL Component Certificates. The Class Principal Balance of the Class
A-MFL Certificates shall be equal at all times to the Class Principal Balance of
the Class A-MFL Regular Interest minus the aggregate Class Principal Balance of
the Class A-MFL Component Certificates, respectively. The aggregate Class
Principal Balance of the Class A-4FL Component Certificates is equal to the
aggregate Original Class Principal Balances of the Class A-4M Certificates and
the Class A-4MS Certificates, increased on any Distribution Date by the amount
of any Certificate Deferred Interest allocated to such Classes on such
Distribution Date and decreased on such Distribution Date by (i) any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, (ii) the amount of any Realized Losses and
Additional Trust Fund Expenses allocated thereto and (iii) the principal amount
of any Class A-4M Conversions. The aggregate Class Principal Balance of the
Class A-MFL Component Certificates is equal to the aggregate Original Class
Principal Balances of the Class A-MM Certificates and the Class A-MMS
Certificates, increased on any Distribution Date by the amount of any
Certificate Deferred Interest allocated to such Classes on such Distribution
Date and decreased on such Distribution Date by (i) any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as applicable, (ii) the amount of any Realized Losses and Additional Trust
Fund Expenses allocated thereto and (iii) the principal amount of any Class A-MM
Conversions.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-28
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-30
attached hereto, and evidencing the sole class of residual interests in REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-31
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-29
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class Z Certificate": Any one of the Certificates with a "Class Z"
designation on the face thereof, substantially in the form of Exhibit A-32
attached hereto, and evidencing an undivided beneficial interest in the
Additional Interest Grantor Trust that is described in Section 4.01(b).
"Closing Date": June 28, 2007.
"CMSA": The Commercial Mortgage Securities Association
(formerly the Commercial Real Estate Secondary Market and Securitization
Association) or any successor organization.
"CMSA Advance Recovery Report": The 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.
"CMSA Bond File": The monthly report substantially in the form of,
and containing the information called for in, the downloadable form of the "CMSA
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.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report": The 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. In connection with preparing the
CMSA Comparative Financial Status Report, the Master Servicer shall process (a)
interim financial statements beginning with interim financial statements for the
fiscal quarter ending September 30, 2007, and (b) annual financial statements
beginning with annual financial statements for the 2007 fiscal year.
"CMSA Delinquent Loan Status Report": The 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.
"CMSA Financial File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"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.
"CMSA Loan Level Reserve/LOC Report": The report substantially in
the form of, and containing the information called for in, the downloadable form
of the "CMSA 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 as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"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.
"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.
"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 and in any event, shall present the
computations made in accordance with the methodology described in such form to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Operating Statement Analysis Report" available as of the Closing Date on
the CMSA Website or in such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage-backed securities transactions generally. In
connection with preparing the CMSA Operating Statement Analysis, the Master
Servicer shall process (a) interim financial statements beginning with interim
financial statements for the fiscal quarter ending September 30, 2007 and (b)
annual financial statements beginning with annual financial statements for the
2007 fiscal year.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally.
"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.
"CMSA Servicer Watchlist/Portfolio Review Guidelines": For any
Determination Date, a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Servicer
Watchlist/Portfolio Review Guidelines" available as of the Closing Date on the
CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Special Servicer Loan File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and is
reasonably acceptable to the Special Servicer.
"CMSA Total Loan Report": A monthly 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 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.
"CMSA Website": The website maintained by the CMSA with an address,
as of the Closing Date, of "www.cmbs.org".
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Co-Lender Loans": As defined in the Preliminary Statement.
"Collection Period": With respect to any Distribution Date, the
period that begins on the twelfth day in the month immediately preceding the
month in which such Distribution Date occurs (or, in the case of the initial
Distribution Date, commencing on the day after the related Cut-Off Date) and
ending on and including the eleventh day in the month in which such Distribution
Date occurs. Notwithstanding the foregoing, in the event that the last day of a
Collection Period is not a Business Day, any Periodic Payments or Principal
Prepayments with respect to the Mortgage Loans relating to a Due Date occurring
in such Collection Period (but for the application of the next Business Day
convention) received on the Business Day immediately following such day will be
deemed to have been received during such Collection Period and not during any
other Collection Period. In addition, notwithstanding the foregoing, with
respect to any Distribution Date, in the event that the Due Date, including any
grace period, with respect to any Mortgage Loan relating to such Distribution
Date occurs after the last day of the related Collection Period, any payments
received with respect to the related Mortgage Loan on or before such Due Date as
extended by any applicable grace period (including without limitation, any
prepayments) will be deemed to have been received during such Collection Period
and not during any other Collection Period.
"Commission": The Securities and Exchange Commission or any
successor agency.
"Companion Distribution Account": With respect to the Companion
Loans, other than the Non-Serviced Companion Loans, the separate account(s) or
subaccount(s) created and maintained by the Companion Paying Agent pursuant to
Section 3.04(b) and held on behalf of the Companion Holders, which shall be
entitled "Wachovia Bank, National Association, as Companion Paying Agent for the
Companion Holders of the Companion Loans relating to the Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C32." The Companion Distribution Accounts shall not be assets of the Trust
Fund, but instead each Companion Distribution Account shall be held by the
Companion Paying Agent on behalf of the applicable Companion Holder. Any such
account shall be an Eligible Account or a subaccount of an Eligible Account.
Notwithstanding the foregoing, if the Master Servicer and the Companion Paying
Agent are the same entity, the Companion Distribution Account may be the related
subaccount or subaccounts of the Certificate Account referenced in the second to
the last paragraph of Section 3.04(a).
"Companion Holder": With respect to any Companion Loan, the owner of
the Mortgage Note representing such Companion Loan. As of the Closing Date, the
Companion Holders of the Companion Loans are (i) the trust fund created under
the MS 2007-IQ14 Pooling and Servicing Agreement, with respect to the Beacon
D.C. & Seattle Pool Pari Passu Companion Loan, (ii) Wachovia, with respect to
the ING Hospitality Pool Pari Passu Companion Loan, (iii) LaSalle Bank National
Association, with respect to the DDR Southeast Pool Pari Passu Note A-1
Companion Loan, (iv) German American Capital Corporation, with respect to the
DDR Southeast Pool Pari Passu Note A-3 Companion Loan, (v) MW1-2002, LLC, with
respect to the Two Herald Square Subordinate Companion Loan, (vi) MW1-2002, LLC,
with respect to the 17 Battery Place South Subordinate Companion Loan, (vii)
Caplease Debt Funding, LP, with respect to the Bunge North America Subordinate
Companion Loans, (viii) MW1-2002, LLC, with respect to the Centerside II
Subordinate Companion Loan, (ix) MW1-2002, LLC, with respect to the La Jolla
Centre I Subordinate Companion Loan, (x) MW1-2002, LLC, with respect to the La
Jolla Centre II Subordinate Companion Loan and (xi) Marriott International
Capital Corporation, with respect to the Courtyard by Marriott - Philadelphia,
PA Subordinate Companion Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The paying agent appointed
pursuant to Section 3.26.
"Companion Register": The register maintained by the
Companion Paying Agent pursuant to Section 3.27.
"Component": Each of Component IO-A-1, Component IO-A-2, Component
IO-A-PB, Component IO-A-3, Component IO-A-4FL, Component IO-A-1A, Component
IO-A-MFL, Component IO-A-J, Component IO-B, Component IO-C, Component IO-D,
Component IO-E, Component IO-F, Component IO-G, Component IO-H, Component IO-J,
Component IO-K, Component IO-L, Component IO-M, Component IO-N, Component IO-O,
Component IO-P, Component IO-Q and Component IO-S.
"Component IO-A-1": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1 as of any date of
determination.
"Component IO-A-1A": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A as of any date of
determination.
"Component IO-A-2": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2 as of any date of
determination.
"Component IO-A-3": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
"Component IO-A-4FL": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
II Principal Balance of REMIC I Regular Interest LA-4FL as of any date of
determination.
"Component IO-A-J": One of the 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-J.
"Component IO-A-MFL": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
II Principal Balance of REMIC I Regular Interest LA-MFL as of any date of
determination.
"Component IO-A-PB": One of 24 components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-PB as of any date of
determination.
"Component IO-B": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LB as of any date of determination.
"Component IO-C": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LC as of any date of determination.
"Component IO-D": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LD as of any date of determination.
"Component IO-E": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LE as of any date of determination.
"Component IO-F": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LF as of any date of determination.
"Component IO-G": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LG as of any date of determination.
"Component IO-H": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LH as of any date of determination.
"Component IO-J": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LJ as of any date of determination.
"Component IO-K": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LK as of any date of determination.
"Component IO-L": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LL as of any date of determination.
"Component IO-M": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LM as of any date of determination.
"Component IO-N": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LN as of any date of determination.
"Component IO-O": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LO as of any date of determination.
"Component IO-P": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LP as of any date of determination.
"Component IO-Q": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LQ as of any date of determination.
"Component IO-S": One of 24 components of the Class IO Certificates
having a Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LA-S.
"Controlling Class": With respect to each Mortgage Loan as of any
date of determination, the Class of Sequential Pay Certificates, (i) which bears
the latest payment priority and (ii) the Certificate Principal Balance of which
is greater than 25% of its original Certificate Principal Balance; provided,
however, if no Class of Sequential Pay Certificates satisfies clause (ii) above,
the Controlling Class shall be the outstanding Class of Sequential Pay
Certificates bearing the latest payment priority. The groups of Classes
comprised of (x) the Class A-1, Class A-2, Class A-PB, Class A-3, Class A-1A,
Class A-4FL and Class A-4FL Component Certificates, and (y) the Class A-MFL and
Class A-MFL Component Certificates will each be treated as one Class for
purposes of determining the Controlling Class.
"Controlling Class Representative": As defined in
Section 3.25(a).
"Controlling Person": With respect to any Person, any other
Person who "controls" such Person within the meaning of the Securities Act.
"Corporate Trust Office": The corporate trust office of the Trustee
at which at any particular time its corporate trust business with respect to
this Agreement shall be administered, which office at the date of the execution
of this Agreement is located at (i) with respect to maintenance of the
Certificate Registrar and the transfer and exchange of Certificates, the office
of the Trustee located at Wells Fargo Center, Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS)
Wachovia Bank Commercial Mortgage Trust, Series 2007-C32 and (ii) for all other
purposes, the office of the Trustee located at 9062 Old Annapolis Road,
Columbia, Maryland 21045-1951, Attention: Corporate Trust Services (CMBS)
Wachovia Bank Commercial Mortgage Trust, Series 2007-C32.
"Corrected Mortgage Loan": Any Mortgage Loan (other than the Non-
Serviced Mortgage Loan) and, if applicable, any Companion Loan (other than the
Non-Serviced Companion Loans) that had been a Specially Serviced Mortgage Loan
but has ceased to be a Specially Serviced Mortgage Loan in accordance with the
definition of "Specially Serviced Mortgage Loan."
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest. The Class A-4FL Regular Interest and the Class A-MFL Regular Interest
are "Corresponding Certificates".
"Corresponding Component": As defined in the Preliminary
Statement with respect to any Corresponding Certificate or any Corresponding
REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates or
any Corresponding Component of the Class IO Certificates.
"Courtyard by Marriott - Philadelphia, PA Intercreditor Agreement":
The Intercreditor and Servicing Agreement, dated as of April 11, 2007, by and
between Wachovia Bank, National Association, as Bank, and Marriott International
Capital Corporation, as Subordinate Mortgagee, relating to the Courtyard by
Marriott - Philadelphia, PA Whole Loan.
"Courtyard by Marriott - Philadelphia, PA Loan": That certain
Mortgage Loan which is included in the Trust Fund (identified as loan number 26
on the Mortgage Loan Schedule).
"Courtyard by Marriott - Philadelphia, PA Subordinate Companion
Loan": That certain mortgage loan evidenced by a note, which is not an asset of
the Trust Fund, secured by the Mortgaged Property securing the Courtyard by
Marriott - Philadelphia, PA Loan and subordinate in right of entitlement to the
Courtyard by Marriott - Philadelphia, PA Loan.
"Courtyard by Marriott - Philadelphia, PA Whole Loan": The Courtyard
by Marriott - Philadelphia, PA Loan, together with the Courtyard by Marriott -
Philadelphia, PA Subordinate Companion Loan.
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage
Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service Coverage
Ratio for all remaining related Crossed Loans for the four calendar quarters
immediately preceding the repurchase or substitution is not less than the Debt
Service Coverage Ratio for all such related Crossed Loans, including the
affected Crossed Loan, for the four calendar quarters immediately preceding the
repurchase or substitution, (ii) the Loan-to-Value Ratio for any remaining
related Crossed Loans determined at the time of repurchase or substitution based
upon an Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined at the
time of repurchase or substitution based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller and (iii)
the Mortgage Loan Seller, at its expense, shall have furnished the Trustee with
an Opinion of Counsel that the repurchase of or substitution for a Crossed Loan,
including, without limitation, any modification relating to such repurchase or
substitution, shall not cause an Adverse REMIC Event.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been appointed or
if such custodian has been so appointed, but the Trustee shall have terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-Off Date": With respect to any Mortgage Loan or Companion Loan,
the Due Date for such Mortgage Loan or Companion Loan in June 2007.
"Cut-Off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-Off Date, after application of all unscheduled
payments of principal received on or before such date and the principal
component of all Periodic Payments due on or before such date, whether or not
received.
"DDR Southeast Pool Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 7, 2007, by and among LaSalle Bank
National Association, as Lead Lender, Wachovia Bank, National Association, as
A-2 Lender and German American Capital Corporation, as A-3 Lender, relating to
the DDR Southeast Pool Whole Loan.
"DDR Southeast Pool Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 3 on the Mortgage Loan
Schedule).
"DDR Southeast Pool Pari Passu Note A-1 Companion Loan": That
certain mortgage loan evidenced by a note, which is not an asset of the Trust
Fund, secured by the Mortgaged Property securing the DDR Southeast Pool Loan and
pari passu in right of entitlement with the DDR Southeast Pool Loan and the DDR
Southeast Pool Pari Passu Note A-3 Companion Loan.
"DDR Southeast Pool Pari Passu Note A-3 Companion Loan": That
certain mortgage loan evidenced by a note, which is not an asset of the Trust
Fund, secured by the Mortgaged Property securing the DDR Southeast Pool Loan and
pari passu in right of entitlement with the DDR Southeast Pool Loan and the DDR
Southeast Pool Pari Passu Note A-1 Companion Loan.
"DDR Southeast Pool Pari Passu Companion Loans": Collectively, the
DDR Southeast Pool Pari Passu Note A-1 Companion Loan and the DDR Southeast Pool
Pari Passu Note A-3 Companion Loan.
"DDR Southeast Pool Whole Loan": The DDR Southeast Pool Loan,
together with the DDR Southeast Pool Pari Passu Companion Loans.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Periodic Payment in effect for such Mortgage Loan as of such date
of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent 60
days or more with respect to a Periodic Payment (not including the Balloon
Payment) or (ii) that is delinquent in respect of its Balloon Payment; provided,
however, if the Mortgagor continues to make its Assumed Scheduled Payment and
diligently pursues refinancing, such Mortgage Loan shall not be considered a
Defaulted Mortgage Loan until 60 days following such default (or, if the Master
Servicer has, within 60 days after the Due Date of such Balloon Payment,
received written evidence from an institutional lender of such lender's binding
commitment (which is reasonably acceptable to the Special Servicer and for which
the Controlling Class Representative has given its consent (which consent shall
be deemed denied if not granted within 10 Business Days)) to refinance such
Mortgage Loan, 120 days following such default) (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage Loan), in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note, or
(iii) as to which the Master Servicer or Special Servicer has, by written notice
to the related Mortgagor, accelerated the maturity of the indebtedness evidenced
by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government securities required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits or requires the related Mortgagor
(or permits the holder of such Mortgage Loan to require the related Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Deficient Valuation": With respect to any Mortgage 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,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Depositor": Wachovia Commercial Mortgage Securities, Inc.
or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(a). 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 Securities Exchange Act of
1934, as amended.
"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.
"Determination Date": The eleventh day of each month, or if such
eleventh day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007.
"Determination Party": Midland Loan Services, Inc., or a second
party that would qualify as a successor Special Servicer mutually agreeable to
the Special Servicer, the Controlling Class Representative and the applicable
Mortgage Loan Seller, or any successor in interest thereto; provided that (a)
each such party is on the list of approved special servicers by Moody's and is
on S&P's Select Servicer List as a U.S. Commercial Mortgage Special Servicer or
(b) each Rating Agency has confirmed in writing that contracting with such
Determination Party would not result in a downgrade, qualification or withdrawal
of the then current rating assigned to any of the Certificates that are then
currently rated by such Rating Agency.
"Directly Operate": With respect to any REO Property (other than
with respect to a Non-Serviced Mortgage Loan), the furnishing or rendering of
services to the tenants thereof, the management of such REO Property, the
holding of such REO Property primarily for sale or lease or the performance of
any construction work thereon, in each case other than through an Independent
Contractor; provided, however, the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-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.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Yield Maintenance Charge or Prepayment
Premium received thereon or with respect thereto among (a) the respective
Classes of the Sequential Pay Certificates (other than any Excluded Class
thereof) and/or (b) the Class A-4FL Regular Interest and/or (c) the Class A-MFL
Regular Interest, an amount, calculated by the Master Servicer and reported to
the Trustee pursuant to Section 4.02(b), will be equal to the discount rate
stated in the related Mortgage Loan documents used in calculating the Yield
Maintenance Charge or Prepayment Premium with respect to such principal
prepayment. To the extent that a discount rate is not stated therein, the
"Discount Rate" will be equal to the yield (when compounded monthly) on the U.S.
Treasury issue with a maturity date closest to the maturity date for such
prepaid Mortgage Loan or REO Loan. In the event there are two or more such U.S.
Treasury issues (a) with the same coupon, the issue with the lowest yield shall
apply, and (b) with maturity dates equally close to the maturity date for the
prepaid Mortgage Loan or REO Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Non-United States Person": With respect to a Class R-I
or Class R-II Certificate, any Non-United States Person or agent thereof other
than (i) a Non-United States Person that holds the Class R-I or Class R-II
Certificate in connection with the conduct of a trade or business within the
United States and has furnished the transferor and the Certificate Registrar
with an effective IRS Form W-8ECI (or successor form) or (ii) a Non-United
States Person that has delivered to both the transferor and the Certificate
Registrar an opinion of nationally recognized tax counsel to the effect that the
transfer of the Class R-I or Class R-II Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R-I or Class R-II Certificate will not be disregarded
for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel (which shall not be an expense of the Trustee) that the holding of an
Ownership Interest in a Residual Certificate by such Person may cause the Trust
Fund 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: (a) any Class
of Sequential Pay Certificates (other than the Class A-4FL Component
Certificates, Class A-4FL Certificates, Class A-MFL Component Certificates and
Class A-MFL Certificates) and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest for any Distribution Date, the Accrued Certificate Interest in
respect of such Class of Certificates or the Class A-4FL Regular Interest or
Class A-MFL Regular Interest, as applicable, for such Distribution Date, reduced
(to not less than zero) by (i) the product of (A) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, (B) a fraction, expressed as a
decimal, the numerator of which is the Accrued Certificate Interest in respect
of such Class of Certificates or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest, as applicable, for such Distribution Date, and the denominator
of which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Sequential Pay Certificates (other than the Class A-4FL Component
Certificates, Class A-4FL Certificates, Class A-MFL Component Certificates and
Class A-MFL Certificates) and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest for such Distribution Date, and (ii) with respect to each such
Class, such Class' share of any Certificate Deferred Interest allocated to such
Class of Certificates or the Class A-4FL Regular Interest or Class A-MFL Regular
Interest, as applicable, in accordance with Section 4.04(c); and (b) the Class
IO Certificates for any Distribution Date, the Accrued Certificate Interest in
respect of such Class of Certificates for such Distribution Date.
"Distribution Account": The segregated account, accounts or
subaccounts created and maintained by the Paying Agent on behalf of the Trustee
pursuant to Section 3.04(b) which shall be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32."
"Distribution Date": With respect to any Determination Date, the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in
Section 4.02(a).
"Do Not Hire List": The list, as may be updated at any time,
provided by the Depositor to the Master Servicer, the Special Servicer and the
Trustee, which lists certain parties identified by the Depositor as having
failed to comply with their respective obligations under Section 8.17 of this
Agreement or as having failed to comply with any similar Regulation AB reporting
requirements under any pooling and servicing agreement relating to any other
series of certificates offered by the Depositor.
"Document Defect": As defined in Section 2.03(a).
"Domestic Global Certificate": Any of the single, permanent
global certificates that represents the Certificates sold in reliance on Rule
144A under the Act.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date or any Companion Loan on or prior to its maturity date, the
day of the month set forth in the related Mortgage Note on which each Periodic
Payment on such Mortgage Loan or Companion Loan is scheduled to be first due;
(ii) any Mortgage Loan after its Stated Maturity Date or any Companion Loan
after its maturity date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Mortgage Loan or Companion 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 Periodic Payment on the related
Mortgage Loan had been scheduled to be first due.
"EDGAR": The Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, and
(a) with respect to deposits held for 30 days or more in such account, the
long-term deposit or unsecured debt obligations of which are rated at least (A)
"Aa3" by Moody's (if then rated by Moody's) and (B) "AA-" by S&P (or "A-";
provided the short-term unsecured debt obligations are rated at least "A-1" by
S&P) (or, with respect to any such Rating Agency, such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the applicable Rating Agency),
at any time such funds are on deposit therein or (b) with respect to deposits
held for less than 30 days in such account, the short-term deposits of which are
rated at least "P-1" by Moody's (if then rated by Moody's) and "A-1" by S&P (or,
with respect to any such Rating Agency, such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates) as evidenced in writing by the applicable Rating Agency at any
time such funds are on deposit therein; or (ii) a segregated trust account or
accounts maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), the long term deposits or unsecured debt of which, or if it is the
wholly-owned subsidiary of an entity the long-term deposits or unsecured
obligations of which, are rated at least "Baa3" by Moody's and which has a
combined capital and surplus of at least $50,000,000; or (iii) any other
account, the use of which would not, in and of itself, cause a qualification,
downgrading or withdrawal of the then-current rating assigned to any Class of
Certificates, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter in the case of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property is multifamily
property or (ii) the American Society for Testing and Materials in the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of
1974, as amended, and any regulations and administrative pronouncements
thereunder.
"ERISA Restricted Certificate": Any Class L, Class M, Class N, Class
O, Class P, Class Q, Class S, Class A-4MS or Class A-MMS 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
related to ERISA Restricted Certificates 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 and the Code would permit transfer of such
Certificate to a Plan without resulting in a non-exempt prohibited transaction.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Exchange Certificate": The certificate necessary to exchange an
interest in a Regulation S Global Certificate for an interest in a Domestic
Global Certificate, which is in the form of Exhibit F-5 attached hereto, or the
certificate necessary to exchange an interest in a Domestic Global Certificate
for an interest in a Regulation S Global Certificate, which is in the form of
Exhibit F-6, as applicable, hereto, in each case as described in Section
5.02(e).
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class A-PB
Certificates, Class A-3 Certificates, Class A-1A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class A-4FL Certificates, Class
A-MFL Certificates, Class G Certificates, Class H Certificates, Class J
Certificates and Class K Certificates.
"Exemptions": Department of Labor Prohibited Transaction Exemption
("PTE") 96-22, PTE 89-88 and Final Authorization Number 2004-03E, each as
amended from time to time, or any successor thereto.
"FDIC": Federal Deposit Insurance Corporation, or its
successor in interest.
"FHLMC": Federal Home Loan Mortgage Corporation, or its
successor in interest.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan (and, if applicable, any
defaulted Companion Loan) or REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by either Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement or by the Majority
Subordinate Certificateholder, the applicable Companion Holder or the Special
Servicer pursuant to Section 3.18(c), 3.18(d), 3.18(e) or 3.18(h), or by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01) that there has been a recovery of
all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special Servicer has determined, in accordance with the Servicing
Standard, will be ultimately recoverable (or, in the case of the Non-Serviced
Mortgage Loans, a "Final Recovery Determination" as defined in the related
Non-Serviced Pooling and Servicing Agreement with respect to such Mortgage
Loans).
"Fixed Amount": The "Fixed Amount" as defined in the Class A-4FL
Swap Contract or the Class A-MFL Swap Contract, as applicable.
"Fixed Swap Payment": With respect to any Distribution Date, the
applicable Fixed Amount required to be paid to the Swap Counterparty by the
Trust Fund under the Class A-4FL Swap Contract or the Class A-MFL Swap Contract,
as applicable.
"Floating Amount": The "Floating Amount" as defined in the Class
A-4FL Swap Contract or the Class A-MFL Swap Contract, as applicable.
"Floating Rate Account": The Class A-4FL Floating Rate
Account or the Class A-MFL Floating Rate Account, as applicable.
"Floating Swap Payment": With respect to any Distribution Date, the
Floating Amount required to be paid to the Trust by the Swap Counterparty under
the Class A-4FL Swap Contract or the Class A-MFL Swap Contract, as applicable.
"FNMA": Federal National Mortgage Association, or any
successor in interest.
"Form 8-K Disclosure Information": As defined in
Section 8.17(j).
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, over (ii) the Purchase Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts or subaccount of the Distribution Account created and maintained by the
Paying Agent pursuant to Section 3.04(e) on behalf of the Trustee in trust for
the Certificateholders, which shall be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32."
Any such account shall be an Eligible Account or a subaccount of an Eligible
Account.
"Global Certificates": The Certificates represented by the
Regulation S Global Certificates and/or the Domestic Global Certificates.
"Grantor Trust Provisions": Subpart E of Part I of
subchapter J of the Code (including all Treasury Regulations thereunder) and
Treasury Regulations Section 301.7701-4(c).
"Grantor Trusts": Collectively, the Additional Interest
Grantor Trust, the A-4FL Grantor Trust and the A-MFL Grantor Trust.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such 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 now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, any Companion Holder and any and all Affiliates
thereof, (ii) does not have any direct financial interest in or any material
indirect financial interest in any of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class Representative,
the Trustee, any Companion Holder or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Controlling Class Representative, the Special Servicer, the Trustee, any
Companion Holder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, a Person shall not fail to be Independent of the Depositor,
the Mortgage Loan Sellers, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be delivered, at no expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust Fund, to the
Trustee and the Master Servicer, so long as REMIC I does not receive or derive
any income from such Person; provided that the relationship between such Person
and REMIC I is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5)), or any other Person upon receipt by the Trustee of an
Opinion of Counsel, which shall be at no expense to the Master Servicer, the
Special Servicer, the Trustee or the Trust Fund, to the effect that the taking
of any action in respect of any REO Property (other than with respect to the
Non-Serviced Mortgage Loans) 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 as defined in Section 856(d) of the Code.
"ING Hospitality Pool Intercreditor Agreement": The Intercreditor
and Servicing Agreement, dated as of June 27, 2007, by and between Wachovia
Bank, National Association, as Initial Lead Lender, and MW1-2002, LLC, as
Initial Co-Lender, relating to the ING Hospitality Pool Whole Loan.
"ING Hospitality Pool Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 2 on the Mortgage Loan
Schedule).
"ING Hospitality Pool Pari Passu Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the ING Hospitality Pool Loan and
pari passu in right of entitlement with the ING Hospitality Pool Loan.
"ING Hospitality Pool Whole Loan": The ING Hospitality Pool Loan,
together with the ING Hospitality Pool Pari Passu Companion Loan.
"Initial Purchaser": Wachovia Capital Markets, LLC, or its
respective successors in interest, individually or collectively as the context
requires.
"Institutional Accredited Investor": Institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act or any entity in which all the equity holders fall within any
such subsections.
"Insurance Policy": With respect to any Mortgage 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 the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in
Section 3.08(c).
"Intercreditor Agreement": Each of the Beacon D.C. & Seattle Pool
Pari Passu Intercreditor Agreement, the ING Hospitality Pool Pari Passu
Intercreditor Agreement, the DDR Southeast Pool Pari Passu Intercreditor
Agreement, the Two Herald Square Intercreditor Agreement, the 17 Battery Place
South Intercreditor Agreement, the Bunge North America Intercreditor Agreement,
the Centerside II Intercreditor Agreement, the La Jolla Centre I Intercreditor
Agreement, the La Jolla Centre II Intercreditor Agreement and the Courtyard by
Marriott - Philadelphia, PA Intercreditor Agreement, individually or
collectively, as the context may require.
"Interest Accrual Period": With respect to each Class of Regular
Certificates and the Class A-4FL and Class A-MFL Regular Interests, interest at
the applicable Pass-Through Rate will be payable monthly on each Distribution
Date and will accrue during each Interest Accrual Period on the Class Principal
Balance (or, in the case of the Class IO Certificates, the Notional Amount) of
such Class of Certificates or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest immediately following the Distribution Date in such Interest
Accrual Period (after giving effect to all distributions of principal made on
such Distribution Date). Interest on each Class of Regular Certificates and the
Class A-4FL Regular Interest and Class A-MFL Regular Interest will be calculated
on the basis of a 360-day year consisting of twelve 30-day months. With respect
to any Class of Regular Certificates and the Class A-4FL Regular Interest and
Class A-MFL Regular Interest and any Distribution Date, the Interest Accrual
Period will be the preceding calendar month, which will be deemed to consist of
30 days; provided, however, for purposes of the initial Interest Accrual Period,
such period commences on June 1, 2007 and continues through the calendar month
preceding the month in which such Distribution Date occurs. With respect to the
Class A-4M and Class A-MM Certificates (and the Class A-4FL and Class A-MFL
Certificates, if issued), the Interest Accrual Period will be 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, but excluding, the related Distribution Date,
calculated on the basis of the actual number of days in such Interest Accrual
Period and assuming each year has 360 days; provided, however, in the event any
such Class of Certificates converts to accrue interest at a fixed rate of
interest, the Interest Accrual Period will be the same as for the Class A-4FL
Regular Interest and Class A-MFL Regular Interest, as applicable.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust for
Certificateholders, which shall be entitled "Wells Fargo Bank, N.A., as Trustee,
on behalf of and in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs in February of each year and in
January of each year that is not a leap year (unless, in either case, the
related Distribution Date is the final Distribution Date), an amount equal to
one day's interest at the related Mortgage Rate (without regard to the second
proviso in the definition thereof) on the related Stated Principal Balance as of
the Due Date in the month in which such Distribution Date occurs (but prior to
the application of any amounts owed on such Due Date), to the extent a Periodic
Payment or P&I Advance is made in respect thereof for such Due Date as of the
related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interest Shortfall Account": As defined in Section 3.04(i).
"Interest Shortfall Amount": $1,052,355.00.
"Interested Person": The Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any Holder of a Certificate, each Companion Holder (but only
with respect to the related Co-Lender Loan) or any Affiliate of any such Person.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer initially located at "www.ctslink.com"
and "www.wachovia.com", respectively, or such other address as provided to the
parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates,
the "issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"La Jolla Centre I Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 27, 2007, by and between Wachovia Bank,
National Association, as Initial Lead Lender, and MW1-2002, LLC, as Initial
Co-Lender, relating to the La Jolla Centre I Whole Loan.
"La Jolla Centre I Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 15 on the Mortgage Loan
Schedule).
"La Jolla Centre I Subordinate Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the La Jolla Centre I Loan and
subordinate in right of entitlement to the La Jolla Centre I Loan.
"La Jolla Centre I Whole Loan": The La Jolla Centre I Loan, together
with the La Jolla Centre I Subordinate Companion Loan.
"La Jolla Centre II Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 27, 2007, by and between Wachovia Bank,
National Association, as Initial Lead Lender, and MW1-2002, LLC, as Initial
Co-Lender, relating to the La Jolla Centre II Whole Loan.
"La Jolla Centre II Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 18 on the Mortgage Loan
Schedule).
"La Jolla Centre II Subordinate Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the La Jolla Centre II Loan and
subordinate in right of entitlement to the La Jolla Centre II Loan.
"La Jolla Centre II Whole Loan": The La Jolla Centre II Loan,
together with the La Jolla Centre II Subordinate Companion Loan.
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon during any Collection Period, other than
Penalty Interest, whether as payments, Insurance Proceeds, Liquidation Proceeds
or otherwise, which represent late collections of the principal and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or an Assumed
Scheduled Payment in respect of such Mortgage Loan or Companion Loan due or
deemed due on a Due Date in a previous Collection Period, and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property during any Collection Period, whether as Insurance
Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Scheduled Payment in respect of the
predecessor Mortgage Loan or of an Assumed Scheduled Payment in respect of such
REO Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"LIBOR": With respect to the Class A-4M and Class A-MM Certificates
and the Class A-4FL Certificates and Class A-MFL Certificates and each Interest
Accrual Period, the rate for deposits in U.S. Dollars, for a period equal to one
month, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London
time, on the related LIBOR Determination Date. If such rate does not appear on
Reuters Screen LIBOR01 Page, the rate for that Interest Accrual Period will be
determined on the basis of the rates at which deposits in U.S. Dollars are
offered by any 4 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 1 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 initial LIBOR rate will be the linear interpolation
between the two-week LIBOR and one-month LIBOR for the initial Interest Accrual
Period. The Trustee will request the principal London office of any 4 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 2
such quotations are provided, the rate for that Interest Accrual Period will be
the arithmetic mean of the quotations. If fewer than 2 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 first day 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 the 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 related Interest Accrual Period.
"LIBOR Business Day": Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London,
England.
"Liquidation Event": With respect to any 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 is repurchased by a Mortgage Loan Seller pursuant to the applicable
Mortgage Loan Purchase Agreement; or (iv) such Mortgage Loan is purchased by the
Majority Subordinate Certificateholder, the Companion Holders, the mezzanine
lenders or the Special Servicer pursuant to Section 3.18(c), 3.18(d), 3.18(e) or
3.18(m), or by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01. 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; (ii) such REO
Property is purchased by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01; or (iii) such
REO Property is purchased by the Companion Holder as described in Section
3.18(d).
"Liquidation Fee": With respect to each Specially Serviced Mortgage
Loan and REO Loan, the fee payable to the Special Servicer out of certain
related recoveries pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to all amounts set forth in the
third paragraph of Section 3.11(c), 1.00%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) 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; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder, the related Companion Holder, the
mezzanine lenders or the Special Servicer pursuant to Section 3.18(c), Section
3.18(d), Section 3.18(e) or Section 3.18(m); (v) the repurchase of a Mortgage
Loan by a Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement; (vi) the purchase of a Mortgage Loan or REO Property by the Master
Servicer, the Special Servicer, or the Majority Subordinate Certificateholder
pursuant to Section 9.01; (vii) the purchase of an REO Property by the Companion
Holder pursuant to Section 3.18(d); or (viii) the remittance by the applicable
Mortgage Loan Seller of amounts specified in Section 2.03(g).
"Liquidity Termination Event": Either of (i) a Put Option
Termination Event or (ii) an Event of Default or Termination Event (each as
defined in the Put Agreements).
"Loan Group": 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, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Pair": Collectively, any Co-Lender Loan and its
related Companion Loan(s).
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any Holder which is
an Affiliate of the Depositor or the Mortgage Loan Seller) entitled to greater
than 50% of the Voting Rights allocated to the Controlling Class; provided,
however, if there is no single Holder of Certificates entitled to greater than
50% of the Voting Rights allocated to such Class, then the Majority Subordinate
Certificateholder shall be the single Holder of Certificates with the largest
percentage of Voting Rights allocated to such Class. With respect to determining
the Majority Subordinate Certificateholder, the groups of Classes comprised of
(x) the Class A-1, Class A-2, Class A-PB, Class A-3, Class A-1A, Class A-4FL and
Class A-4FL Component Certificates and (y) the Class A-MFL and Class A-MFL
Component Certificates shall each be deemed to be a single Class of Certificates
for purposes of determining the Controlling Class, in each case, with such
Voting Rights allocated among the Holders of Certificates of such Classes in
proportion to the respective Certificate Principal Balances of such Certificates
as of such date of determination.
"Mandatory Tender Date": With respect to each of the Class A-4M
Certificates and Class A-MM Certificates the Distribution Date occurring in the
twelfth (12th) month from the respective date of such Certificates unless
extended in accordance with the terms of this Agreement and/or the Placement
Agreement.
"Master Servicer": Wachovia Bank, National Association, its
successor in interest (including the Trustee as successor pursuant to Section
7.02), or any successor master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan
and REO Loan the fee payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan the
percentage set forth under the column "Master Servicing Fee Rate" on the
Mortgage Loan Schedule.
"Material Core Documents": As defined in Section 2.03.
"Memorandum": As defined in the Mortgage Loan Purchase
Agreement.
"Money Term": With respect to any Mortgage Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a Prepayment Premium
or Yield Maintenance Charge in connection with a Principal Prepayment (but not
any late fees or default interest provisions).
"Moody's": Moody's Investors Service, Inc., or its successor in
interest. If Moody's nor any successor remains in existence, "Moody's" shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
to which the Mortgage Rate has been reduced through a modification and any
Distribution Date, the amount by which (a) interest accrued at such reduced rate
is less than (b) the amount of interest that would have accrued on such Mortgage
Loan at the Mortgage Rate before such reduction, to the extent such amount has
been added to the outstanding principal balance of such Mortgage Loan.
"Mortgage File": With respect to any Mortgage Loan,
collectively the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty,
express or implied) to the order of "Wells Fargo Bank, N.A., as
trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2007-C32", or in blank (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information), of (a) the Mortgage,
(b) any related Assignment of Leases (if such item is a document
separate from the Mortgage and to the extent not already assigned
pursuant to preceding clause (a)) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of "Wells Fargo Bank, N.A., as trustee for
the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32", or
in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of "Wells Fargo Bank, N.A.,
as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2007-C32", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed
by an authorized representative of the title company, a "pro forma"
title policy, or an agreement to provide the same pursuant to
binding escrow instructions executed by an authorized representative
of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC
Financing Statements in favor of the originator of such Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to
the extent the Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement and continuation statement in
favor of the Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "Wells Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32, as assignee", or in blank;
(ix) an original or copy of (A) any Ground Lease, memorandum
of ground lease and ground lessor estoppel, and (B) any loan
guaranty or indemnity and (C) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or
security agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents relating to such Mortgage Loan;
(xiii) copies of any management agreements and applicable
transfer or assignment documents;
(xiv) copies of any cash management agreements and applicable
transfer or assignment documents;
(xv) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and applicable transfer
or assignment documents; and
(xvi) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each Mortgage Note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided;
provided that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee or by a Custodian on its behalf, such
term shall not be deemed to include such documents required to be included
therein unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix) through and including (xv) of this definition, shall be deemed to
include only such documents to the extent the Trustee or Custodian has actual
knowledge of their existence.
Notwithstanding the foregoing, with respect to the Non-Serviced
Mortgage Loans, the "Mortgage File" will consist of the original note (or lost
note affidavit, if applicable) specified in clause (i) above, and a photocopy of
each additional document in the Mortgage File held by the related Non-Serviced
Trustee.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, and other security
documents contained in the related Mortgage File. Unless otherwise indicated, as
used in this Agreement, the term "Mortgage Loan" does not include any Companion
Loan.
"Mortgage Loan Purchase Agreement": Each of the Wachovia Mortgage
Loan Purchase Agreement and the Artesia Mortgage Loan Purchase Agreement,
individually or collectively, as the context may require.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iii) the Cut-Off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining
term to stated maturity and (C) the Stated Maturity Date and, in the
case of an ARD Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such ARD
Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is insured by an
environmental policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter of
credit;
(xvii) whether such Mortgage Loan is an Interest Reserve Loan;
(xviii) whether payments on such Mortgage Loan are made to a
lock-box;
(xix) the amount of any Reserve Funds escrowed in respect of
each Mortgage Loan;
(xx) the number of units or square feet related to the
Mortgaged Property;
(xxi) the number of grace days after the Due Date until
Periodic Payments incur late payment charges; and
(xxii) the applicable Loan Group to which such Mortgage Loan
belongs.
"Mortgage Loan Seller": Each of Wachovia and Artesia, as the context
may require, or their respective successors in interest, individually or
collectively as the context may require.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans
and any successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest 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; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding; provided, however, 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 the 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 Penalty Interest or Additional Interest) in respect of such Mortgage Loan
during such one-month period at the related Mortgage Rate; provided, however,
solely for the purposes of calculating the Pass-Through Rates, 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 will be determined exclusive of the Interest Reserve
Amounts for such months (in either case, unless such Due Date occurs in a
January or February in which the final Distribution Date occurs), and (B)
preceding the Due Date in March, and in the event the final Distribution Date
occurs in February, preceding the Due Date in such February, will be determined
inclusive of the Interest Reserve Amounts for the immediately preceding February
and, if applicable, January; provided, further, if the Mortgage Rate of the
related Mortgage Loan has been modified 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,
solely for purposes of calculating the Pass-Through Rate, the Mortgage Rate for
such Mortgage Loan shall be calculated without regard to such event.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"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
and/or, in the case of an indemnity deed of trust, the entity which granted the
lien on such Mortgaged Property.
"MS 2007-IQ14 Controlling Class Representative": The "Controlling
Class Representative" as defined in the MS 2007-IQ14 Pooling and Servicing
Agreement.
"MS 2007-IQ14 Depositor": As defined in the Preliminary Statement.
"MS 2007-IQ14 Majority Subordinate Certificateholder": The "Majority
Subordinate Certificateholder" as defined in the MS 2007-IQ14 Pooling and
Servicing Agreement.
"MS 2007-IQ14 Master Servicer": As defined in the Preliminary
Statement.
"MS 2007-IQ14 Mortgage Loan Purchase Agreement": The
"Mortgage Loan Purchase Agreement" as defined in the MS 2007-IQ14 Pooling and
Servicing Agreement.
"MS 2007-IQ14 Pooling and Servicing Agreement": As defined
in the Preliminary Statement.
"MS 2007-IQ14 Serviced Mortgage Loan": The Beacon D.C. & Seattle
Pool Loan.
"MS 2007-IQ14 Special Servicer": As defined in the Preliminary
Statement.
"MS 2007-IQ14 Trust Fund": As defined in the Preliminary Statement.
"MS 2007-IQ14 Trustee": As defined in the Preliminary
Statement.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage Loans. For
purposes of calculating the Prepayment Interest Shortfall with respect to the
Non-Serviced Mortgage Loans, Prepayment Interest Shortfalls will be allocated in
accordance with the related Non-Serviced Pooling and Servicing Agreement and the
related Intercreditor Agreement. The portion of such shortfall allocated to the
Non-Serviced Mortgage Loans, net of amounts payable to the related Non-Serviced
Master Servicer, will be included in the Net Aggregate Prepayment Interest
Shortfall. For purposes of calculating the Prepayment Interest Shortfall with
respect to the Co-Lender Loans (other than the Non-Serviced Mortgage Loans),
Prepayment Interest Shortfalls will be allocated, first, to the promissory note
evidencing the related Subordinate Companion Loans, if any, and second, to the
promissory note evidencing the related Co-Lender Loan.
"Net Investment Earnings": With respect to (i) the Certificate
Account, any Servicing Account, any Special Reserve Account, any Reserve Account
or the REO Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account, the Additional Interest Account, the
Floating Rate Accounts, the Class A-4M Trust Account, the Class A-MM Trust
Account, the Class A-4M Funding Account, the Class A-MM Funding Account and the
Companion Distribution Account (if any) for the related Distribution Date, the
amount, if any, by which the aggregate of all interest and other income realized
during such Collection Period with respect to the accounts described in clause
(i) above and as of such related Distribution Date with respect to the accounts
described in clause (ii) above on funds held in such accounts, exceeds the
aggregate of all losses, if any, incurred during such Collection Period with
respect to the accounts described in clause (i) above and as of such related
Distribution Date with respect to the accounts described in clause (ii) above in
connection with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to (i) the Certificate Account,
any Servicing Account, any Special Reserve Account, any Reserve Account or the
REO Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account, the Additional Interest Account, the
Floating Rate Accounts, the Class A-4M Trust Account, the Class A-MM Trust
Account, the Class A-4M Funding Account, the Class A-MM Funding Account and the
Companion Distribution Account (if any) for the related Distribution Date, the
amount by which the aggregate of all losses, if any, incurred during such
Collection Period with respect to the accounts described in clause (i) above and
as of such related Distribution Date with respect to the accounts described in
clause (ii) above in connection with the investment of funds held in such
accounts in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such Collection Period with respect to the
accounts described in clause (i) above and as of such related Distribution Date
with respect to the accounts described in clause (ii) above on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable Master
Servicing Fee Rate.
"Net Operating Income" or "NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"Net Swap Payment": With respect to the related Interest Accrual
Period, the excess, if any of (i) the applicable Fixed Swap Payment over (ii)
the applicable Floating Swap Payment.
"Net Swap Receipt": With respect to the related Interest Accrual
Period, the excess, if any of (i) the applicable Floating Swap Payment over (ii)
the applicable Fixed Swap Payment.
"New Lease": Any lease of REO Property (other than with respect to
the Non-Serviced Mortgage Loans under the related Non-Serviced Pooling and
Servicing Agreement) entered into at the direction of the Special Servicer on
behalf of REMIC I, including any lease renewed, modified or extended on behalf
of such REMIC if the Special Servicer has the right to renegotiate the terms of
such lease.
"NMWHFIT": A "Non-Mortgage Widely Held Fixed Investment Trust" as
that term is defined in Treasury Regulations section 1.671-5(b)(12) or successor
provisions.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided that 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 accordance with the Servicing Standard or
the standards applicable to the Trustee as set forth in the definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing Advance" that such
Workout-Delayed Reimbursement Amounts would not ultimately be recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of the related Mortgage Loan or REO Loan or (b) has
determined in accordance with the Servicing Standard or such other applicable
standard that such Workout-Delayed Reimbursement Amounts, along with any other
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances, would not
ultimately be recoverable from the portion of Late Collections, Insurance
Proceeds or Liquidation Proceeds in respect of the pool of the Mortgage Loans or
REO Loans allocable to principal, or any other recovery on or in respect of the
pool of Mortgage Loans or REO Loans allocable to principal.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or any REO Loan by the
Master Servicer, the Special Servicer or the Trustee, as the case may be, that,
as determined by the Master Servicer, the Special Servicer or the Trustee, as
applicable, in accordance with the Servicing Standard (in the case of the Master
Servicer or the Special Servicer), or the standard of care set forth in Section
8.01(a) (with respect to the Trustee), as applicable, with respect to such P&I
Advance will not be ultimately recoverable from Late Collections, Insurance
Proceeds or Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage Loan, Pari Passu Companion Loan or REO Loan; provided that the Master
Servicer will be permitted to conclusively rely upon any such nonrecoverability
determination made by the Special Servicer.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan, REO Loan or Companion
Loan by the Master Servicer, the Special Servicer or the Trustee, as the case
may be (or, in the case of the Non-Serviced Mortgage Loans, made by the related
Non-Serviced Master Servicer, that, as determined by the Master Servicer, the
Special Servicer, the Trustee or the related Non-Serviced Master Servicer, as
applicable, in accordance with the Servicing Standard (in the case of the Master
Servicer or the Special Servicer), the "Servicing Standard" as defined in the
related Non-Serviced Pooling and Servicing Agreement (in the case of the related
Non-Serviced Master Servicer), the standard of care set forth in Section 8.01(a)
(with respect to the Trustee), as applicable, will not be ultimately recoverable
from Late Collections, Insurance Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan, Companion Loan, REO Property,
the related Non-Serviced Mortgage Loans, as applicable; provided that the Master
Servicer will be permitted to conclusively rely upon any such nonrecoverability
determination made by the Special Servicer.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class A-4FL, Class A-MFL, Class A-4M, Class A-4MS, Class
A-MM, Class A-MMS, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class Z, Class R-I or Class R-II
Certificate.
"Non-Serviced Companion Loan": Each of the Beacon D.C. & Seattle
Pool Pari Passu Companion Loan and, after the securitization of the DDR
Southeast Pool Pari Passu Note A-1 Companion Loan, the DDR Southeast Pool Pari
Passu Companion Loan.
"Non-Serviced Controlling Class Representative": The
controlling class representative under a Non-Serviced Pooling and Servicing
Agreement.
"Non-Serviced Master Servicer": The master servicer under a
Non-Serviced Pooling and Servicing Agreement.
"Non-Serviced Mortgage Loans": Each of the Beacon D.C. & Seattle
Pool Loan and, after the securitization of the DDR Southeast Pool Pari Passu
Note A-1 Companion Loan, the DDR Southeast Pool Loan.
"Non-Serviced Pooling and Servicing Agreement": Each of the pooling
and servicing agreements related to the Beacon D.C. & Seattle Pool Loan and,
after the securitization of the DDR Southeast Pool Pari Passu Note A-1 Companion
Loan if such securitization occurs on or prior to December 28, 2007, the pooling
and servicing agreement related to the DDR Southeast Pool Loan.
"Non-Serviced Special Servicer": The special servicer under
a Non-Serviced Pooling and Servicing Agreement.
"Non-Serviced Trustee": The trustee under a Non-Serviced
Pooling and Servicing Agreement.
"Non-United States Person": Any Person other than a United
States Person.
"Officer's Certificate": A certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be, or by a Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer or the Special
Servicer) acceptable to and delivered to the Trustee or the Master Servicer, as
the case may be, except that any opinion of counsel relating to (a) the
qualification of REMIC I or REMIC II as a REMIC; (b) the qualification of the
Additional Interest Grantor Trust, the A-4FL Grantor Trust or the A-MFL Grantor
Trust as a grantor trust; (c) compliance with the REMIC Provisions or the
Grantor Trust Provisions, (d) the treatment of the Class A-4M Trust and the
Class A-MM Trust as a partnership or (e) the resignation of the Master Servicer
or the Special Servicer pursuant to Section 6.04 must be an opinion of counsel
who is in fact Independent of the Master Servicer, the Special Servicer or the
Depositor, as applicable.
"Option Price": As defined in Section 3.18(c).
"Original Class IO Notional Amount": $3,823,853,068.
"Original Class Principal Balance": With respect to any Class of
Sequential Pay Certificates and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest, the Original Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b), as
applicable.
"P&I Advance Date": The Business Day immediately preceding
each Distribution Date.
"Pari Passu Companion Loans": The Beacon D.C. & Seattle
Pool Pari Passu Companion Loan, the ING Hospitality Pool Pari Passu Companion
Loan and the DDR Southeast Pool Pari Passu Companion Loans.
"Pari Passu Mortgage Loans": The Beacon D.C. & Seattle Pool
Loan, the ING Hospitality Pool Loan and the DDR Southeast Pool Loan.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
5.686% per annum;
(ii) the Class A-2 Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus 0.005%;
(iii) the Class A-PB Certificates for any Distribution Date,
the Weighted Average Net Mortgage Rate for such date;
(iv) the Class A-3 Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(v) the Class A-4M Certificates (A) for any Distribution Date,
a per annum rate equal to LIBOR plus 0.000% (B) for any Distribution
Date on which a Class A-4FL Distribution Conversion has occurred and
is continuing, the lesser of (1) 5.703% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(vi) the Class A-4FL Certificates (A) for any Distribution
Date on which a Class A-4FL Distribution Conversion has not occurred
and is not continuing, a per annum rate equal to LIBOR plus 0.175%
and (B) for any Distribution Date on which a Class A-4FL
Distribution Conversion has occurred and is continuing, the lesser
of (1) 5.703% per annum and (2) the Weighted Average Net Mortgage
Rate for such date;
(vii) the Class A-4FL Regular Interest for any Distribution
Date, the lesser of (1) 5.703% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(viii) the Class A-1A Certificates for any Distribution Date,
the Weighted Average Net Mortgage Rate for such date;
(ix) the Class IO Certificates for the initial Distribution
Date, 0.011% per annum, and for any subsequent Distribution Date,
the weighted average of the Class IO Strip Rates for the respective
Class IO Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution Date);
(x) the Class A-MM Certificates (A) for any Distribution Date,
a per annum rate equal to LIBOR plus 0.020% and (B) for any
Distribution Date on which a Class A-MFL Distribution Conversion has
occurred and is continuing, the lesser of (1) 5.703% per annum and
(2) the Weighted Average Net Mortgage Rate for such date;
(xi) the Class A-MFL Certificates (A) for any Distribution
Date on which a Class A-MFL Distribution Conversion has not occurred
and is not continuing, a per annum rate equal to LIBOR plus 0.220%
and (B) for any Distribution Date on which a Class A-MFL
Distribution Conversion has occurred and is continuing, the lesser
of (1) 5.703% per annum and (2) the Weighted Average Net Mortgage
Rate for such date;
(xii) the Class A-MFL Regular Interest for any Distribution
Date, the lesser of (1) 5.703% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xiii) the Class A-J Certificates for any Distribution Date,
the Weighted Average Net Mortgage Rate for such date;
(xiv) the Class B Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xv) the Class C Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xvi) the Class D Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xvii) the Class E Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xviii) the Class F Certificates for any Distribution Date,
the Weighted Average Net Mortgage Rate for such date;
(xix) the Class G Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xx) the Class H Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xxi) the Class J Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xxii) the Class K Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xxiii) the Class L Certificates for any Distribution Date,
the lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxiv) the Class M Certificates for any Distribution Date, the
lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxv) the Class N Certificates for any Distribution Date, the
lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxvi) the Class O Certificates for any Distribution Date, the
lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxvii) the Class P Certificates for any Distribution Date,
the lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxviii) the Class Q Certificates for any Distribution Date,
the lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date; and
(xxix) the Class S Certificates for any Distribution Date, the
lesser of (1) 5.666% per annum and (2) the Weighted Average Net
Mortgage Rate for such date.
"Paying Agent": The paying agent appointed pursuant to Section 8.16.
If no such paying agent has been appointed or if such paying agent has been so
appointed but the Trustee has terminated such appointment, then the Trustee
shall be the Paying Agent.
"Penalty Interest": With respect to any Mortgage Loan or Companion
Loan (or successor REO Loan), any amounts collected thereon, other than late
payment charges, Additional Interest, Prepayment Premiums or Yield Maintenance
Charges, that represent penalty interest (arising out of a default) in excess of
interest on the Stated Principal Balance of such Mortgage Loan or Companion Loan
(or successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate or
the Class A-4FL, Class A-4M, Class A-4MS, Class A-MFL, Class A-MM or Class A-MMS
Certificates, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Original Class Principal Balance or Original Notional Amount, as
the case may be, of the relevant Class. With respect to a Residual Certificate
or Class Z Certificate, the percentage interest in distributions to be made with
respect to the relevant Class, as stated on the face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan or Companion
Loan as of any Due Date, the scheduled payment of principal and/or interest on
such Mortgage Loan or Companion Loan (exclusive of Additional Interest),
including any Balloon Payment, that is actually payable by the related Mortgagor
from time to time under the terms of the related Mortgage Note (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality thereof (having original
maturities of not more than 365 days); provided such obligations are
backed by the full faith and credit of the United States of America.
Such obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change or be liquidated prior to maturity. Interest
may either be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that index;
(ii) repurchase obligations with respect to any security
described in clause (i) above (having original maturities of not
more than 365 days); provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such obligations
are rated in the highest rating categories of each of Moody's and
S&P or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. In
addition, its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may
either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States of America or any state thereof
(having original maturities of not more than 365 days), the short
term obligations of which are rated in the highest rating categories
of each of Moody's and S&P or such lower rating as will not result
in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, its terms should have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. In addition, its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the
United States of America or any state thereof (or if not so
incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to any
withholding imposed by any non-United States jurisdiction) which is
rated in the highest rating category of each of Moody's and S&P or
such lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. The commercial paper by
its terms must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may either be
fixed or variable. If such interest is variable, interest must be
tied to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(v) units of money market funds that maintain a constant asset
value and which, if rated, are rated in the highest applicable
rating category by Moody's and which are rated "AAAm" or "AAAm G" by
S&P (or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies) and
which seeks to maintain a constant net asset value. In addition, its
terms must have a predetermined fixed dollar amount of principal due
at maturity that cannot vary or change; and
(vi) any other obligation or security that constitutes a "cash
flow investment" within the meaning of Section 860G(a)(6) of the
Code and is acceptable to each Rating Agency, evidence of which
acceptability shall be provided in writing by each Rating Agency to
the Master Servicer, the Special Servicer and the Trustee; provided,
however, in no event shall such other obligation or security be
rated less than "AA+/F1", "Aa3/P+" or "AA/A-1" by Fitch, Moody's or
S&P, respectively;
provided that (1) no investment described hereunder shall evidence
either the right to receive (x) only interest with respect to such investment or
(y) a yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a (i) Disqualified Organization, (ii) a Plan, (iii) a Disqualified
Non-United States Person, (iv) a United States Person treated as a partnership
for federal income tax purposes, any partner of which, directly or indirectly
(except through a U.S. corporation), is (or is permitted under the related
partnership agreement to be) a Disqualified Non-United States Person, or (v) a
United States Person with respect to whom income on the Residual Certificate is
allocable to a foreign permanent establishment or fixed base, within the meaning
of an applicable income tax treaty, of such Person or any other United States
Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Placement Agents": Wachovia Capital Markets LLC and
Deutsche Bank Securities Inc.
"Placement Agreement": That certain Placement Agreement
between the Depositor and the Placement Agents, dated as of June 22, 2007.
"Placement Date": With respect to any Series of Class A-4M
or Series of Class A-MM Certificates, the related Mandatory Tender Date for
such Certificates.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of
(i) REMIC I or (ii) REMIC II, the Holder of Certificates holding the largest
Percentage Interest of the related Class of Residual Certificates.
"Preliminary Memorandum": As defined in the Mortgage Loan
Purchase Agreement.
"Preliminary Prospectus Supplement": As defined in the
Mortgage Loan Purchase Agreement.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of the related Master Servicing Fee and, if applicable, the Additional
Interest) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date and ending on the date such Principal Prepayment
was applied to such Mortgage Loan, to the extent collected (exclusive of any
related Prepayment Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal Prepayment was applied to such Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any Prepayment Premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
the day immediately preceding such Due Date, inclusive.
"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.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate," then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its
reasonable discretion and the Master Servicer shall notify the Trustee and the
Special Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) and any Assumed Scheduled Payments
due or deemed due in respect of the Mortgage Loans for their respective
Due Dates occurring during the related Collection Period, to the extent
not previously received or advanced with respect to a Distribution Date
prior to the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (other than a Principal Prepayment) made by or on
behalf of the related Mortgagor during the related Collection Period
(including any Balloon Payment), in each case net of any portion of such
payment that represents a recovery of the principal portion of any
Scheduled Payment (other than a Balloon Payment) due, or the principal
portion of any Assumed Scheduled Payment deemed due, in respect of such
Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise included in
clause (a), (b) or (c) above, payments that were received on the related
Mortgage Loans during the related Collection Period and that were
identified and applied by the Master Servicer and/or Special Servicer as
recoveries of principal of such Mortgage Loans, in each case net of any
portion of such amounts that represents a recovery of the principal
portion of any Scheduled Payment (other than a Balloon Payment) due, or of
the principal portion of any Assumed Scheduled Payment deemed due, in
respect of the related Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in respect
of the related REO Loans for their respective Due Dates occurring during
the related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
Servicer as recoveries of principal of the related REO Loans, in each case
net of any portion of such amounts that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Scheduled Payment deemed
due, in respect of the related REO Loan or the predecessor Mortgage Loan
on a Due Date during or prior to the related Collection Period and not
previously recovered;
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates on such
immediately preceding Distribution Date pursuant to Section 4.01;
(h) any amounts that were used to reimburse Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) from principal
collections on the Mortgage Loans pursuant to Section 3.05(a) hereof which
are subsequently recovered on the related Mortgage Loan with respect to
the Distribution Date related to the period in which such recovery occurs;
(i) any amounts that were used to reimburse Workout-Delayed
Reimbursement Amounts (including interest on such Workout-Delayed
Reimbursement Amounts) from principal collections on the Mortgage Loans
pursuant to Section 3.05(a) hereof which are subsequently recovered on the
related Mortgage Loan with respect to the Distribution Date related to the
period in which such recovery occurs; less
(j) the amount of any reimbursements of (i) Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) that are paid or
reimbursed from principal collections on the Mortgage Loans pursuant to
Section 3.05(a) hereof with respect to such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts (including interest on such
Workout-Delayed Reimbursement Amounts) that are paid or reimbursed from
principal collections on the Mortgage Loans pursuant to Section 3.05(a)
hereof with respect to such Distribution Date, in each case where such
principal collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan or Companion Loan that is received in advance of
its scheduled Due Date; provided that it shall not include a payment of
principal that is 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.
"Privileged Person": Any Certificateholder, Certificate Owner, any
Person identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, any Companion Holders, any party hereto, any
Underwriter or any designee of the Depositor; provided that no Certificate Owner
or prospective transferee of a Certificate or interest therein shall be
considered a "Privileged Person" or be entitled to a password or restricted
access as contemplated by Section 3.15 or Section 4.02 unless such Person has
delivered to the Trustee or the Master Servicer, as applicable, a certification
in the form of Exhibit K-1 or Exhibit K-2, as applicable which certification is
available on the Trustee's Internet Website.
"Prohibited Party": Any party, in the case of the Master Servicer,
the Special Servicer or the Trustee, that is listed on the Depositor's Do Not
Hire List.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated October 19, 2006, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement, dated June
22, 2007 of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
"PTE 95-60": As defined in Section 5.02(c).
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan or REO Loan to
be purchased by a Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder, the Companion
Holder or the Special Servicer as described in Section 3.18(c), 3.18(d) or
3.18(e), or by the Depositor, the Special Servicer, the Majority Subordinate
Certificateholder or the Master Servicer pursuant to Section 9.01, a cash price
equal to the outstanding principal balance of such Mortgage Loan or REO Loan, as
of the date of purchase, together with (a) all accrued and unpaid interest on
such Mortgage Loan or REO Loan at the related Mortgage Rate to but not including
the Due Date in the Collection Period of purchase (or, in the case of any
Mortgage Loan for which the Due Date occurs on a day other than the eleventh day
of each month, the Due Date occurring in the month in which such Collection
Period ends) plus any accrued interest on P&I Advances made with respect to such
Mortgage Loan, (b) all related and unreimbursed Servicing Advances plus any
accrued and unpaid interest thereon, (c) any reasonable costs and expenses,
including, but not limited to, the cost of any enforcement action, incurred by
the Master Servicer, the Special Servicer or the Trust Fund in connection with
any such purchase by a Mortgage Loan Seller (to the extent not included in
clause (b) above) and (d) any other Additional Trust Fund Expenses in respect of
such Mortgage Loan (including any Additional Trust Fund Expenses previously
reimbursed or paid by the Trust Fund but not so reimbursed by the related
Mortgagor or other party or from Insurance Proceeds or condemnation proceeds or
any other collections in respect of the Mortgage Loan or the related Mortgaged
Property from a source other than the Trust Fund), or in the case of any Loan
Pair, the purchase price specified in the related Intercreditor Agreement;
provided that the Purchase Price shall not be reduced by any outstanding P&I
Advance.
"Put Agreement": Either of the Class A-4M Put Agreement and
the Class A-MM Put Agreement.
"Put Option Termination Event": As defined in the Put
Agreements.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A qualified institutional
buyer within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum insurance financial strength or claims paying
ability rating of at least "A3" by Moody's and "A" by S&P (or the obligations of
which are guaranteed or backed by a company having such a claims paying
ability), and (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 a claims paying ability rated no lower than two
rating categories (without regard to pluses or minuses or numerical
qualifications) below the rating assigned to the then highest rated outstanding
Certificate (or, for purposes of general liability insurance only at least "A"
by two nationally recognized statistical rating organizations (which must
include S&P)), but in no event lower than "A3" by Moody's or "A" by S&P (or, if
not rated by Moody's, then at least "A" by two other nationally recognized
statistical rating organizations (which may include S&P)), or, in the case of
clauses (i) and (ii), such other rating as each 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 that are
then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (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 consisting of twelve
30-day months); (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) 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 that indicates no adverse environmental
conditions with respect to the related Mortgaged Property and which will be
delivered as a part of the related Servicing File; (ix) have an original Debt
Service Coverage Ratio (calculated to include the additional debt from any
encumbrance) of not less than the original Debt Service Coverage Ratio
(calculated to include the additional debt from any encumbrance) of the deleted
Mortgage Loan and a current Debt Service Coverage Ratio (calculated to include
the additional debt from any encumbrance) of not less than the current Debt
Service Coverage Ratio (calculated to include the additional debt from any
encumbrance) 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 Mortgage Loan Seller); (xiii) have a date of
origination that is not more than 12 months prior to the date of substitution;
(xiv) have been approved by the Controlling Class Representative (or, if there
is no Controlling Class Representative then serving, by the Holders of
Certificates representing a majority of the Voting Rights allocated to the
Controlling Class); (xv) not be substituted for a deleted Mortgage Loan if it
would result in the termination of the REMIC status of REMIC I or REMIC II or
the imposition of tax on either of such REMICs other than a tax on income
expressly permitted or contemplated to be imposed by the terms of this
Agreement, as determined by an Opinion of Counsel (at the applicable Mortgage
Loan Seller's expense); and (xvi) become a part of the same Loan Group as the
deleted 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 no individual Mortgage Loan shall have a Net
Mortgage Rate that is less than the highest Pass-Through Rate of any Class of
Sequential Pay Certificates bearing a fixed 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. No substitutions will be permitted for the Non-Serviced Mortgage Loans
or the DDR Southeast Pool Loan.
"Rated Final Distribution Date": The Distribution Date in June 2049,
the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-Off Date, has the
longest remaining amortization term (without regard to the related Stated
Maturity Date).
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) each Defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive of any portion
thereof that constitutes default interest in excess of the Mortgage Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), plus (c)
any related unreimbursed Servicing Advances and any unreimbursed interest on any
Advances as of the commencement of the Collection Period in which the Final
Recovery Determination was made, together with any new related Servicing
Advances made during such Collection Period, minus (d) all payments and
proceeds, if any, received in respect of such Mortgage Loan or the REO Property
that relates to such REO Loan, as the case may be, during the Collection Period
in which such Final Recovery Determination was made; (2) each Defaulted Mortgage
Loan as to which any portion of the principal or previously accrued interest
(other than Additional Interest and Penalty Interest) payable thereunder was
canceled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of such principal and/or interest so canceled; (3) each Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and not
recaptured for any period in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of the consequent reduction in the interest portion of each
successive Periodic Payment due thereon (each such Realized Loss shall be deemed
to have been incurred on the Due Date for each affected Periodic Payment); and
(4) each Mortgage Loan for which a Final Recovery Determination has been made,
to the extent not included in clause (1) above, Nonrecoverable Advances
(including interest on such Nonrecoverable Advance) to the extent amounts have
been paid from the Principal Distribution Amount pursuant to Section 3.05(a)
hereof.
"Realized Loss Template": The template substantially in the form of,
and containing the information called for in, the downloadable form of the
"Historical Bond/Collateral Realized Loss Reconciliation" 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.
"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.
"Registered Certificate": Any Class A-1, Class A-2, Class A-PB,
Class A-3, Class A-1A, Class IO, Class A-J, Class B, Class C, Class D, Class E
or Class F Certificate.
"Regular Certificate": Any REMIC II Certificate other than
a Class R-II Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
"Regulation AB Companion Loan Securitization": As defined
in Section 3.29(a).
"Regulation S": Regulation S under the Act.
"Regulation S Certificate": A certificate in the form of
Exhibit F attached hereto.
"Regulation S Global Certificate": A global certificate representing
interests in a Class of Certificates as provided in Section 5.02(e), initially
sold in offshore transactions in reliance on Regulation S in fully registered
form without interest coupons.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"Release Date": The 40th day after the later of
(i) commencement of the offering of the Certificates and (ii) the Closing
Date.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the various parties, as set forth on Exhibit S attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Participant engaged by
the Trustee, the Master Servicer or the Special Servicer, the term "Relevant
Servicing Criteria" may refer to a portion of the Relevant Servicing Criteria
for each of the Master Servicer, the Special Servicer or the Trustee, as
applicable.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) all of 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 Closing Date (excluding all Additional Interest on such Mortgage
Loans), together with all documents included in the related Mortgage Files and
any related Escrow Payments and Reserve Funds; (ii) all amounts held from time
to time with respect to a Mortgage Loan in the Interest Reserve Account, the
Certificate Account, the Distribution Account, the Gain-on-Sale Reserve Account,
the Interest Shortfall Account and any REO Account; (iii) any REO Property
acquired in respect of a Mortgage Loan to the extent of the Trust Fund's
interest therein (or the Trust Fund's beneficial interest in the Mortgaged
Property securing each Non-Serviced Mortgage Loan acquired under the related
Non-Serviced Pooling and Servicing Agreement; (iv) the rights of the Depositor
under Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19 of each of the
Mortgage Loan Purchase Agreements with respect to such Mortgage Loans; (v) the
rights of the mortgagee under all Insurance Policies with respect to such
Mortgage Loans, in each of the foregoing clauses exclusive of the interest of
the holder of a Companion Loan therein.
"REMIC I Pass-Through Rate": As set forth in the Preliminary
Statement.
"REMIC I Principal Balance": The principal balance of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall equal
the original REMIC I Principal Balance corresponding to the Corresponding
Certificates as set forth in the Preliminary Statement hereto. On each
Distribution Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(h), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b) and shall be increased on such Distribution Date by
Certificate Deferred Interest deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c).
"REMIC I Regular Interest": Any of the separate uncertificated
beneficial ownership interests in REMIC I issued hereunder, and designated as a
"regular interest" in REMIC I, held as an asset of REMIC II and having the
original REMIC I Principal Balance and REMIC I Pass-Through Rate as described in
the Preliminary Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts held from time to time, to the extent
related to REMIC II, in the Distribution Account, conveyed in trust to the
Trustee for the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section 2.9, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-PB, Class
A-3, Class A-1A, Class IO, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class Q, Class S or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements 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": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "CWCapital
Asset Management LLC, as Special Servicer, in trust for the registered holders
of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32."
"REO Acquisition": The acquisition of any REO Property by the Trust
Fund pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(h).
"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 to the extent of the Trust Fund's
interest therein. Each REO Loan shall be deemed to be outstanding for so long as
the related REO Property remains part of REMIC I and deemed to provide for
Periodic Payments of principal and/or interest equal to its Assumed Scheduled
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund). Each REO Loan shall be deemed to have an
initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan (or, if applicable, Companion Loan) as of the date of
the related REO Acquisition. All Scheduled Payments (other than a Balloon
Payment), Assumed Scheduled Payments (in the case of a Balloon Mortgage Loan
delinquent in respect of its Balloon Payment) and other amounts due and owing,
or deemed to be due and owing, in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to continue to be due
and owing in respect of an REO Loan. In addition, Nonrecoverable Advances and
Unliquidated Advances (including interest on such Nonrecoverable Advances or
Unliquidated Advances) with respect to such REO Loan that were paid from
collections on the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced pursuant to Section 3.05(a) hereof, shall be
deemed outstanding until recovered or until a Final Recovery Determination is
made. Collections in respect of each REO Loan (after provision for amounts to be
applied to the payment of, or to be reimbursed to the Master Servicer, the
Special Servicer or the Trustee for the payment of, the costs of operating,
managing, selling, leasing and maintaining the related REO Property or for the
reimbursement of the Master Servicer, the Special Servicer or the Trustee for
Advances as provided in this Agreement) shall be treated: first, as a recovery
of Nonrecoverable Advances and Unliquidated Advances (including interest on such
Nonrecoverable Advances and Unliquidated Advances) with respect to such REO
Loan, in each case that relate to Advances that were paid from collections on
the Mortgage Loans and resulted in principal distributed to the
Certificateholders being reduced pursuant to Section 3.05(a) hereof; second, as
a recovery of accrued and unpaid interest on such REO Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt (exclusive of any portion thereof that constitutes Additional Interest);
third, as a recovery of principal of such REO Loan to the extent of its entire
unpaid principal balance; and fourth, in accordance with the normal servicing
practices of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan, including, without limitation, (i) Yield
Maintenance Charges, Prepayment Premiums and Penalty Interest and (ii)
Additional Interest and other amounts, in that order. Notwithstanding the
foregoing, all amounts payable or reimbursable to the Master Servicer, the
Special Servicer or the Trustee in respect of the predecessor Mortgage Loan as
of the date of the related REO Acquisition, including, without limitation, any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer, the
Special Servicer or the Trustee in respect of such Servicing Advances and P&I
Advances in accordance with Sections 3.03(d) and 4.03(d), shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee, as the case may be, in respect of an REO Loan pursuant to Section
3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee (or, in the case of any Non-Serviced Mortgage Loan, the
Trust Fund's proportionate beneficial interest in the Mortgaged Property
acquired by the related Non-Serviced Trustee pursuant to the related
Non-Serviced Pooling and Servicing Agreement) for the benefit of the
Certificateholders (subject to the related Intercreditor Agreement with respect
to a Mortgaged Property securing a Loan Pair) 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.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Reportable Event": As defined in Section 8.17(j).
"Reporting Party": The Master Servicer, the Special
Servicer, the Trustee, an Additional Servicer or a Servicing Participant.
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer.
"Required Appraisal Date": With respect to any Required Appraisal
Mortgage Loan, the earliest date on which any of the items specified in clauses
(i) through (vi) of the first paragraph of the definition of Required Appraisal
Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Other than with respect to the
Non-Serviced Mortgage Loans, (i) any Mortgage Loan that is 60 days or more
delinquent in respect of any Periodic Payments, (ii) any Mortgage Loan that
becomes an REO Loan, (iii) any Mortgage Loan that has been modified by the
Special Servicer to reduce the amount of any Periodic Payment (other than a
Balloon Payment), (iv) any Mortgage Loan with respect to which a receiver is
appointed and continues in such capacity in respect of the related Mortgaged
Property, (v) any Mortgage Loan with respect to which a Mortgagor declares
bankruptcy or with respect to which the related Mortgagor is subject to a
bankruptcy proceeding, (vi) any Mortgage Loan with respect to which any Balloon
Payment on such Mortgage Loan has not been paid by its scheduled maturity date;
provided, however, if the related Mortgagor continues to make its Assumed
Scheduled Payment and diligently pursues refinancing, such Mortgage Loan shall
not become a Required Appraisal Mortgage Loan until 60 days following such
default or, if the Master Servicer has, within 60 days after the Due Date of
such Balloon Payment, received written evidence from an institutional lender of
such lender's binding commitment (which is reasonably acceptable to the Special
Servicer and for which the Controlling Class Representative has given its
consent (which consent shall be deemed denied if not granted within 10 Business
Days)) to refinance such Mortgage Loan, 120 days following such default
(provided that if such refinancing does not occur during such time specified in
the commitment, the related Mortgage Loan will immediately become a Required
Appraisal Mortgage Loan) or (vii) any Mortgage Loan that is outstanding 60 days
after the third anniversary of an extension of its Stated Maturity Date;
provided, however, a Required Appraisal Mortgage Loan will cease to be a
Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive full
and timely Periodic Payments under the terms of such Mortgage Loan (other
than the Non-Serviced Mortgage Loans) (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving
the related Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to Section 3.20);
and
(b) with respect to the circumstances described in clauses (iv), (v)
and (vi) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the
Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (iv) and (v), no later than the entry of
an order or decree dismissing such proceeding, and with respect to the
circumstances described in clause (vi) above, no later than the date that
the Special Servicer agrees to an extension pursuant to Section 3.20
hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Mortgage Loan (other than the Non-Serviced
Mortgage Loans) to continue to be characterized as a Required Appraisal Mortgage
Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses and any other
downward adjustments the Special Servicer may deem appropriate (without implying
any obligation to do so) based upon its review of the Appraisal and such other
information as the Special Servicer may deem appropriate) of the Mortgaged
Property related to the subject Required Appraisal Mortgage Loan as determined
by a Required Appraisal or letter update or internal valuation, if applicable;
provided that for purposes of determining any Appraisal Reduction Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal Reduction
Amount shall be amended annually to reflect the Required Appraisal Value
determined pursuant to any Required Appraisal or letter update or internal
valuation, if applicable, of a Required Appraisal conducted subsequent to the
original Required Appraisal performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan (other than the
Non-Serviced Mortgage Loans), any amounts delivered by the related Mortgagor to
be held in escrow by or on behalf of the mortgagee representing reserves for
environmental remediation, repairs, capital improvements, tenant improvements
and/or leasing commissions with respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I Certificate or
Class R-II Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Corporate Trust Office of the
initial Trustee, and (ii) any successor trustee, any officer or assistant
officer in the corporate trust department of the successor trustee, or any other
officer or assistant 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.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the managers and any other distributor (as defined
in Regulation S) of the Certificates, and (b) the Closing Date.
"Restricted Servicer Reports": Each of the CMSA Servicer
Watchlist/Portfolio Review Guidelines, CMSA Operating Statement Analysis, CMSA
NOI Adjustment Worksheet and CMSA Comparative Financial Status Report. If a
Restricted Servicer Report is filed with the Commission, it shall thereafter be
an Unrestricted Servicer Report.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification": A written certification signed by an
officer of the Depositor that complies with (i) the Sarbanes-Oxley Act of 2002,
as amended from time to time, including all necessary Regulation AB
certification requirements, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d),
as in effect from time to time.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-Off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 or acceleration of principal by reason of default, and assuming that each
prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-PB,
Class A-3, Class A-1A Certificate or Class IO Certificate or the Class A-4FL
Regular Interest.
"Sequential Pay Certificates": Any Class A-1, Class A-2, Class A-PB,
Class A-3, Class A-4FL, Class A-4FL Component, Class A-1A, Class A-MFL, Class
A-MFL Component, 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 or Class S Certificate.
"Series": With respect to the Class A-4M and Class A-MM
Certificates, any such Class of Certificates issued in connection with a
Remarketing that is assigned a separate CUSIP number.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan (a) the Stated Principal Balance of such
Mortgage Loan as of the end of the immediately preceding Collection Period and
(b) the difference between the Master Servicing Fee Rate for such Mortgage Loan
over the servicing fee rate (if any) applicable to such Mortgage Loan as
specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"Servicer Reports": Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA Loan Periodic
Update File, the CMSA Financial File, CMSA Property File, the CMSA Advance
Recovery Report, the CMSA Total Loan Report and a report reconciling Penalty
Interest and late payment charges collected with interest on Advances and
Additional Trust Fund Expenses.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by or on behalf of the Master Servicer,
the Special Servicer or the Trustee in connection with the servicing of a
Mortgage Loan or a Companion Loan (other than the Non-Serviced Mortgage Loans),
or in connection with the administration of any related REO Property, including,
but not limited to, the cost of (a) compliance with the obligations of the
Master Servicer and the Special Servicer, if any, set forth in Section 3.02 and
Section 3.03(c), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section 3.07(a),
(c) obtaining any Insurance Proceeds or any Liquidation Proceeds of the nature
described in clauses (i) through (v) of the definition of "Liquidation
Proceeds," (d) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including, without limitation, foreclosures, (e) any
Required Appraisal or other appraisal expressly required or permitted to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any such REO Property, including, without limitation, appraisals and
compliance with Section 3.16(a) (to the extent not covered by available funds in
the REO Account) and Section 3.20(h) (to the extent not paid by the related
Mortgagor) and (g) compliance with the obligations of the Master Servicer or the
Trustee set forth in Section 2.03(a) or (b). Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
Master 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 or REO Property,
or costs or expenses expressly required to be borne by the Master Servicer or
Special Servicer without reimbursement pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in Item
1122(d) of Regulation AB.
"Servicing Fees": With respect to each Mortgage Loan,
Companion Loan and REO Loan, the Master Servicing Fee and the Special
Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to the
origination and servicing of any Mortgage Loan or Companion Loan which are
reasonably required for the ongoing administration of the Mortgage Loan and the
Companion Loan, including management agreements, cash management agreements,
lockbox agreements, franchise agreements, franchise comfort letters (and
evidence of required notification of transfer), appraisals, surveys, engineering
reports, environmental reports, operation and maintenance (O&M) plans, financial
statements, leases, rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer,
the Special Servicer or any Additional Servicer involved in, or responsible for,
the administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Participant": Any Additional Servicer, Sub-Servicer,
Subcontractor or any other Person, other than the Master Servicer, the Special
Servicer and the Trustee, that is performing activities addressed by the
Servicing Criteria, unless such Person's activities relate only to 5% or less of
the Mortgage Loans.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration of the
Mortgage Loans (other than the Non-Serviced Mortgage Loans) and the Companion
Loans (other than the related Non-Serviced Companion Loans) for which it is
responsible hereunder (a) in the same manner in which, and with the same care,
skill, prudence and diligence with which the Master Servicer or the Special
Servicer, as the case may be, generally services and administers similar
mortgage loans with similar mortgagors (i) for other third-parties, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans or (ii) held
in its own portfolio, whichever standard is higher, (b) with a view to the
maximization of the recovery on such Mortgage Loan on a net present value basis
and the best interests of the Certificateholders and the Trust Fund or, if a
Loan Pair (other than the Non-Serviced Mortgage Loans) is involved, with a view
towards the maximization of recovery on such Loan Pair to the
Certificateholders, the related Companion Holders and the Trust Fund (as a
collective whole, taking into account that the Subordinate Companion Loans are
subordinate to the related Co-Lender Loans and the Pari Passu Companion Loans
are pari passu in right of payment with the Pari Passu Mortgage Loan, in each
case to the extent set forth in the related Intercreditor Agreement) and (c)
without regard to (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor, the Depositor, any Mortgage Loan Seller or any other party to the
transaction or any Affiliate thereof; (ii) the ownership of any Certificate,
mezzanine loan or Companion Loan (or other interest in any Mortgage Loan,
mezzanine loan or Companion Loan) by the Master Servicer or the Special
Servicer, as the case may be, or by any Affiliate thereof; (iii) the right of
the Master Servicer or the Special Servicer, as the case may be, to receive
compensation or other fees for its services rendered pursuant to this Agreement;
(iv) the obligations of the Master Servicer to make Advances; (v) the ownership,
servicing or management by the Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof for others of any other mortgage loans or
mortgaged property; (vi) any obligation of the Master Servicer or any Affiliate
of the Master Servicer to repurchase or substitute a Mortgage Loan as a Mortgage
Loan Seller; (vii) any obligation of the Master Servicer or any Affiliate of the
Master Servicer to cure a breach of a representation and warranty with respect
to a Mortgage Loan; and (viii) any debt the Master Servicer or Special Servicer
or any Affiliate of either has extended to any Mortgagor or any Affiliate of
such Mortgagor.
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the Non-Serviced Mortgage Loans), the occurrence of any of the events
described in clauses (a) through (h) of the definition of "Specially Serviced
Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination.
"Significant Obligor": With respect to any date of
determination, any Mortgage Loan meeting the definition of "significant
obligor" under Regulation AB. As of the Closing Date, the Significant Obligor
is the Beacon D.C. & Seattle Pool Loan.
"Special Reserve Account": As used herein, the Trustee may create a
segregated custodial account or accounts pursuant to Section 2.02(d) in trust
for the Certificateholders, which shall be entitled "Wells Fargo Bank, N.A., as
Trustee, in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32
and [name of party providing the funds]". Any such account will be an Eligible
Account.
"Special Servicer": With respect to each Mortgage Loan (other than
the Non-Serviced Mortgage Loans), CWCapital Asset Management LLC, or, any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan (other than
the Non-Serviced Mortgage Loans) or Companion Loan (other than the Non-Serviced
Companion Loans) as to which any of the following events have occurred:
(a) the related Mortgagor shall have (i) failed to make any Balloon
Payment; provided, however, if the Mortgagor continues to make its Assumed
Scheduled Payment and diligently pursues refinancing, a Servicing Transfer
Event shall not occur until 60 days following such default (or, if the
Master Servicer has, within 60 days after the Due Date of such Balloon
Payment, received written evidence from an institutional lender of such
lender's binding commitment (which is reasonably acceptable to the Special
Servicer and for which the Controlling Class Representative has given its
consent (which consent shall be deemed denied if not granted within 10
Business Days)) to refinance such Mortgage Loan, 120 days following such
default) (provided that if such refinancing does not occur during the time
period specified in such written refinancing commitment, a Servicing
Transfer Event will be deemed to occur); or (ii) failed to make when due
any Periodic Payment (other than a Balloon Payment), and such failure has
continued unremedied for 60 days; or
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the Controlling Class
Representative) shall have determined (with written notice of any such
determination by the Special Servicer to be promptly given by the Special
Servicer to the Master Servicer), in its good faith reasonable judgment,
and in accordance with the Servicing Standard, based on communications
with the related Mortgagor, that a default in making a Periodic Payment
(including a Balloon Payment) or any other default under the applicable
Mortgage Loan documents that would (with respect to such other default)
materially impair the value of the Mortgaged Property as security for the
Mortgage Loan and, if applicable, Companion Loan or otherwise would
materially adversely affect the interests of Certificateholders and would
continue unremedied beyond the applicable grace period under the terms of
the Mortgage Loan (or, if no grace period is specified, for 60 days;
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 likely to occur and is likely to remain unremedied for at least
60 days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that the Master Servicer or the Special Servicer (in the
case of the Special Servicer, with the consent of the Controlling Class
Representative) shall have determined (with written notice of any such
determination by the Special Servicer to be promptly given by the Special
Servicer to the Master Servicer), in its good faith and reasonable
judgment, and in accordance with the Servicing Standard, materially
impairs the value of the Mortgaged Property as security for the Mortgage
Loan and, if applicable, Companion Loan, or otherwise materially adversely
affects the interests of Certificateholders and that continues unremedied
beyond the applicable grace period under the terms of the Mortgage Loan
(or, if no grace period is specified, for 60 days; provided that a default
that gives rise to an acceleration right without any grace period shall be
deemed to have a grace period equal to zero); provided, however, in the
event the Special Servicer with the consent of the Controlling Class
Representative determines that the related Mortgagor does not need to
maintain terrorism insurance as provided in Section 3.07(a), no default
related to the failure to obtain such insurance shall be deemed to be
outstanding for purposes of this clause(c); or
(d) 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
or the appointment of a conservator or 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,
shall have been entered against the related Mortgagor; provided that if
such decree or order is discharged, dismissed or stayed within 60 days it
shall not be a Specially Serviced Mortgage Loan (and no Special Servicing
Fees shall be payable); or
(e) 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
(f) 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, bankruptcy or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have force placed insurance against
damages or losses arising from acts of terrorism due to the failure of the
related Mortgagor to maintain or cause such insurance to be maintained and
(1) subsequent to such force placement such Mortgagor fails to maintain or
cause to be maintained insurance coverage against damages for losses
arising from acts of terrorism for a period of 60 days (or such shorter
time period as the Controlling Class Representative may consent to) or (2)
the Master Servicer fails to have been reimbursed from any Servicing
Advances made in connection with the force placement of such insurance
coverage (unless the circumstances giving rise to such forced placement of
such insurance coverage have otherwise been cured and the Master Servicer
has been reimbursed for any Servicing Advances made in connection with the
forced placement of such insurance coverage); or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the
related Mortgaged Property;
provided, however, a Companion Loan shall be deemed to be a
Specially Serviced Mortgage Loan if the related Co-Lender Loan becomes a
Specially Serviced Mortgage Loan and a Co-Lender Loan shall be deemed to be a
Specially Serviced Mortgage Loan if the related Companion Loan becomes a
Specially Serviced Mortgage Loan; provided, further, however, a Mortgage Loan or
Companion Loan will cease to be a Specially Serviced Mortgage Loan:
(i) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has made three consecutive full
and timely Periodic Payments under the terms of such Mortgage Loan
or Companion Loan (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(ii) with respect to the circumstances described in clauses
(b), (d), (e) and (f) above, when such circumstances cease to exist
in the good faith reasonable judgment of the Special Servicer and in
accordance with the Servicing Standard, but, with respect to any
bankruptcy or insolvency proceedings described in clauses (d), (e)
and (f), no later than the entry of an order or decree dismissing
such proceeding;
(iii) with respect to the circumstances described in clause
(c) and (g) above, when such default is cured; and
(iv) with respect to the circumstances described in clause (h)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (h)
above exists that would cause the Mortgage Loan (or, with respect to a Co-Lender
Loan, the related Companion Loan, or, with respect to a Companion Loan, the
related Co-Lender Loan) to continue to be characterized as a Specially Serviced
Mortgage Loan; provided no additional default is foreseeable in the reasonable
good faith judgment of the Special Servicer. The determination as to whether a
Non-Serviced Mortgage Loan is a Specially Serviced Mortgage Loan shall be made
pursuant to the related Non-Serviced Pooling and Servicing Agreement.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"State or Local Tax": Any tax imposed by the States of New York,
North Carolina and Minnesota and by any other state or local taxing authorities;
provided that such states and such other state and local taxing authorities, by
notice to the Trustee, assert jurisdiction over the Trust Fund or any portion
thereof, or which, according to an Opinion of Counsel addressed to the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount (which amount shall not be less than zero)
equal to (x) the Cut-Off Date Balance of such Mortgage Loan (or, in the case of
a Qualified Substitute Mortgage Loan, the unpaid principal balance after
application of all principal payments due on or before the related date of
substitution, whether or not received), plus (y) any Mortgage Deferred Interest
added to the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Collection Period minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-Off Date or the related date of
substitution, as the case may be, to the extent received from the
Mortgagor or advanced by the Master Servicer or the Trustee and
distributed to Certificateholders on or before such date of
determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-Off Date or the related date of
substitution, as the case may be, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage Loan
after the Cut-Off Date or the related date of substitution, as the
case may be, to the extent distributed to Certificateholders on or
before such date of determination;
(iv) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan during the related Collection Period;
and
(v) any amount of reduction in the outstanding principal
balance of such Mortgage Loan resulting from a Deficient Valuation
that occurred prior to the end of the Collection Period 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 as of the date of the related REO Acquisition, minus (y) the sum of:
(A) the principal portion of any P&I Advance made with
respect to the predecessor Mortgage Loan on or after the date
of the related REO Acquisition, to the extent distributed to
Certificateholders on or before such date of determination;
and
(B) the principal portion of all Insurance Proceeds,
Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders
on or before such date of determination.
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. In addition, to the
extent that principal from general collections is used to reimburse
Nonrecoverable Advances pursuant to Sections 3.05(a)(vii) and (viii) or Workout
Delayed Reimbursement Amounts pursuant to Sections 3.05(a)(vii) and (viii)
(which are only reimbursable from principal collections on the Mortgage Pool as
set forth in this Agreement) and such amount has not been included as part of
the Principal Distribution Amount, such amount shall nevertheless be deemed to
be part of the Principal Distribution Amount for purposes of clauses (i), (ii)
and (iii) above. Notwithstanding the foregoing, if any Mortgage Loan is paid in
full, liquidated or otherwise removed from the Trust Fund, commencing as of the
first Distribution Date following the Collection Period during which such event
occurred, the Stated Principal Balance of such Mortgage Loan will be zero.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Subcontractor": Any third-party or affiliated vendor, subcontractor
or other Person utilized by a Servicer, a Sub-Servicer, the Trustee or the
Custodian, as applicable, that is not responsible for the overall servicing (as
"servicing" is commonly understood by participants in the commercial
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.
"Subordinate Companion Holder": The holders of any of the
Subordinate Companion Loans.
"Subordinate Companion Loan": Each of the Two Herald Square
Companion Loan, the 17 Battery Place South Companion Loan, Bunge North America
Subordinate Companion Loans, the Centerside II Subordinate Companion Loan, the
La Jolla Centre I Subordinate Companion Loan, the La Jolla Centre II Subordinate
Companion Loan and the Courtyard by Marriott - Philadelphia, PA Companion Loan,
individually or collectively, as the context may require.
"Subordinated Certificate": Any (i) Class A-MM, Class A-MMS or Class
A-MFL Certificate (each of which are in respect of the Class A-MFL Regular
Interest) or (ii) Class A-J, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q, Class S, Class Z, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer, the
Special Servicer or an Additional Servicer has entered into a Sub-Servicing
Agreement for the performance (whether directly or through Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Master Servicer or the Special Servicer under
this Agreement or by an Additional Servicer under a servicing agreement, with
respect to some or all of the Mortgage Loans, that are identified in Item
1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) 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 Loan 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(c).
"Swap Contract": Either the Class A-4FL Swap Contract or
the Class A-MFL Swap Contract.
"Swap Counterparty": Wachovia acting in such capacity or
its successor in interest or any Swap Counterparty under a replacement Swap
Contract.
"Swap Counterparty Threshold Ratings": A requirement that will be
satisfied if (i) either (A) where the Swap Counterparty is not subject to a
Moody's short-term rating, the long-term debt obligations of the Swap
Counterparty are rated at least "A1" by Moody's or (B)(1) the short-term debt
obligations of the Swap Counterparty are rated at least "P-1" by Moody's and (2)
the long-term debt obligations of such Swap Counterparty are rated at least "A2"
by Moody's and (ii) either (A) the short-term debt obligations of the Swap
Counterparty are rated "A-1" by S&P, or (B) if such Swap Counterparty does not
have a short-term rating, the long-term debt obligations of such Swap
Counterparty are rated "A+" by S&P.
"Swap Default": Under either Swap Contract, an Event of Default or
Termination Event (as each is defined in such Swap Contract) that results in the
designation of an early termination date.
"Swap Termination Fees": Any fees or expenses payable by the Swap
Counterparty to the Trust Fund in connection with a Swap Default, termination of
the related Swap Contract or liquidation of the related Swap Contract, as
specified in such Swap Contract.
"Tax Matters Person": With respect to each of REMIC I and REMIC II,
the Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1, which Person shall be the applicable Plurality
Residual Certificateholder.
"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 REMIC I and REMIC II due to its classification as a
REMIC under the REMIC Provisions, the federal income tax return to be filed on
behalf of each of the Grantor Trusts due to their classification as a grantor
trust under the Grantor Trust Provisions, and the federal income tax return on
Form 1065 to be filed on behalf of each of the Class A-4M Trust and the Class
A-MM Trust due to their classification as partnerships under 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 under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable State and Local Tax laws.
"Tenants-in-Common Loan": Those certain Mortgage Loans which are
identified on Exhibit Z hereto for which the related Mortgagors own the related
Mortgaged Property as tenants-in-common and the related Mortgagor is subject to
further syndication.
"Time of Sale": As defined in that certain Underwriting Agreement,
dated as of June 22, 2007, among the Depositor, Wachovia and the Underwriters.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of each of REMIC I
and REMIC II, (ii) the Additional Interest Grantor Trust Assets, (iii) the Class
A-4FL Grantor Trust Assets, (iv) the A-MFL Grantor Trust Assets, (v) the assets
of the Class A-4M Trust and (vi) the assets of the Class A-MM Trust.
"Trustee": Wells Fargo Bank, N.A., its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Loan for
any Distribution Date, an amount equal to one month's interest for the most
recently ended calendar month (calculated on a 30/360 Basis), accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": 0.00058% per annum.
"Two Herald Square Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of June 27, 2007, by and between Wachovia Bank,
National Association, as Initial Lead Lender, and MW1-2002, LLC, as Initial
Co-Lender, relating to the Two Herald Place Whole Loan.
"Two Herald Square Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 4 on the Mortgage Loan
Schedule).
"Two Herald Square Subordinate Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Two Herald Square Loan and
subordinate in right of entitlement to the Two Herald Square Loan.
"Two Herald Square Whole Loan": The Two Herald Place Loan, together
with the Two Herald Place Subordinate Companion Loan.
"UCC": The Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Underwriter": Each of Wachovia Capital Markets, LLC,
Barclays Capital Inc. and Goldman, Sachs & Co. or, in each case, its
successor in interest.
"United States Person": A citizen or resident of the United States,
a corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust, and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996,
that are eligible to elect to be treated as United States Persons).
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and (vi) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
which the Trust Fund holds a beneficial interest in respect of which the Advance
was made.
"Unrestricted Servicer Reports": Each of the CMSA Delinquent Loan
Status Report, CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, CMSA Loan Level Reserve/LOC Report, CMSA REO Status Report, the CMSA
Advance Recovery Report and the CMSA Total Loan Report.
"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, 100% of the voting rights for the Certificates will be
allocated among the respective Classes of Certificates as follows: (i) 4.0% in
the case of the Class IO Certificates and (ii) in the case of any Class of
Sequential Pay Certificates, a percentage equal to the product of 96.0% and a
fraction, the numerator of which is equal to the aggregate Certificate Principal
Balance of such Class of Certificates (as adjusted by treating any Appraisal
Reduction Amount as a Realized Loss solely for the purposes of adjusting Voting
Rights) and the denominator of which is equal to the aggregate Certificate
Principal Balances of all Classes of Sequential Pay Certificates, determined as
of the Distribution Date immediately preceding such time; provided, however, the
treatment of any Appraisal Reduction Amount as a Realized Loss shall not reduce
the Certificate Principal Balances of any Class for the purpose of determining
the Controlling Class, the Controlling Class Representative or the Majority
Subordinate Certificateholder. The holders of the Class R-I Certificates, Class
R-II Certificates and Class Z Certificates will not be entitled to any Voting
Rights. Voting Rights allocated to a Class of Certificates will be allocated
among the related Certificateholders in proportion to the percentage interests
in such Class evidenced by their respective Certificates. The Class A-1
Certificates, Class A-2 Certificates, Class A-PB Certificates, Class A-3
Certificates and Class A-1A Certificates will be treated as one Class for
determining the Controlling Class. In addition, if either the Master Servicer or
the Special Servicer is the holder of any Sequential Pay Certificate, neither
the Master Servicer nor Special Servicer, in its capacity as a
Certificateholder, will have Voting Rights with respect to matters concerning
compensation affecting the Master Servicer or the Special Servicer.
"Wachovia": Wachovia Bank, National Association, or its
successor in interest.
"Wachovia Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of June 1, 2007 between the Depositor and
Wachovia and relating to the transfer of the Wachovia Mortgage Loans to the
Depositor.
"Wachovia Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the Wachovia Mortgage Loan Purchase
Agreement.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Net
Mortgage Rates applicable to the Mortgage Loans as of the first day of the
related Collection Period, weighted on the basis of their respective Stated
Principal Balances immediately following the preceding Distribution Date.
"WHFIT": A "Widely Held Fixed Investment Trust" as that term is
defined in Treasury Regulations section 1.671-5(b)(22) or successor provisions.
"WHFIT Regulations": Treasury Regulations section 1.671-5, as
amended.
"WHMT": A "Widely Held Mortgage Trust" as that term is defined in
Treasury Regulations section 1.671-5(b)(23) or successor provisions.
"Whole Loan": Collectively, each Co-Lender Loan and their
related Non-Serviced Companion Loans.
"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 (or, with respect to the Non-Serviced Mortgage Loans, a
"corrected mortgage loan" under the related Non-Serviced Pooling and Servicing
Agreement), together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance (and any 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 (or, with respect to
the Non-Serviced Mortgage Loans, a "corrected mortgage loan" under the related
Non-Serviced Pooling and Servicing Agreement) and (ii) the amount of such
Advance (and any interest thereon) becomes an obligation of the Mortgagor to pay
such amount over a period of time rather than immediately or on the next Due
Date under the terms of the modified loan documents.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note; provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries having maturity dates most closely approximating the maturity of
such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+ 0.055/2)^0.16667}-1) where
0.055 is the decimal version of the percentage 5.50% and 0.16667 is the decimal
version of the exponential power. The MEY in the above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the rights of the Depositor under
Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19 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 and due after the Cut-Off
Date. The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 11.07, is intended
by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, each Mortgage Loan Seller 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 (with a copy to the Master Servicer and Special Servicer), on
or before the Closing Date, the Mortgage File for each Mortgage Loan so assigned
and the Servicing File to the Master Servicer. The Special Servicer may request
the Master Servicer to deliver a copy of the Servicing File for any Mortgage
Loan (other than a Specially Serviced Mortgage Loan, which will not be at the
expense of the Special Servicer) at the expense of the Special Servicer. None of
the Trustee, any Custodian, the Master Servicer or the Special Servicer shall be
liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the document delivery requirements of the applicable Mortgage Loan Purchase
Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File" (or, with respect to the
Non-Serviced Mortgage Loans, a photocopy thereof), 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 related Mortgage Loan Purchase Agreement and 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 (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 on or
before 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 120 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, 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), (iii), (vi) (if recorded) and (viii) of the definition of
"Mortgage File" (or, with respect to the Non-Serviced Mortgage Loans, a
photocopy thereof) 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 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) is delivered to the Trustee or a Custodian appointed thereby
on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and recordable form any one of
the assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File" (or, with respect to the Non-Serviced Mortgage
Loans, a photocopy thereof), the applicable Mortgage Loan Seller may
provisionally satisfy the delivery requirements of the related Mortgage Loan
Purchase Agreement and Section 2.01(b) by delivering with respect to such
Mortgage Loan on the Closing Date an omnibus assignment of such Mortgage Loan;
provided that all required original assignments with respect to such Mortgage
Loan in fully complete and recordable form shall be delivered to the Trustee or
its Custodian within 120 days of the Closing Date (or within such longer period
as the Trustee in its discretion may permit).
(d) The Trustee shall, for a fee paid to the Trustee by the
Depositor on the Closing Date as to each Mortgage Loan (other than the
Non-Serviced Mortgage Loans) promptly (and in any event within 90 days following
the latest of (i) the Closing Date, (ii) the delivery of all assignments and UCC
Financing Statements to the Trustee and (iii) 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 and
filing information required for the recording or 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 and to the extent timely delivered to the
Trustee in final, recordable form, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents (to the extent the
Trustee has actual knowledge that such documents are to be recorded) relating to
each such Mortgage Loan, in favor of the Trustee referred to in clause (iv)(a),
(b) and (c), respectively, of the definition of "Mortgage File" and each UCC-2
and UCC-3 assignment in favor of the Trustee and so delivered to the Trustee and
referred to in clause (viii) of the definition of "Mortgage File." The
applicable Mortgage Loan Seller shall reimburse the Trustee for all reasonable
costs and expenses incurred for recording any documents described in clause
(iv)(c) of the definition of "Mortgage File." Each such assignment, UCC-2 and
UCC-3 shall reflect that the recorded original should be returned by the public
recording office to the Trustee or its designee following recording, and each
such UCC-2 and UCC-3 assignment shall reflect that the file copy thereof should
be returned to the Trustee or its designee following filing; provided that in
those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom a certified copy of the recorded original, at the expense of
the Depositor. If any such document or instrument is lost or returned unrecorded
or unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to promptly prepare or cause to be prepared 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. Upon request, the Trustee shall forward to the Master Servicer a
copy of each of the aforementioned recorded assignments following the Trustee's
receipt thereof, to the extent not previously provided.
(e) All documents and records in the Servicing File in possession of
the Depositor or the Mortgage Loan Sellers (except attorney client privileged
communications, draft documents and any documents or materials prepared by the
Mortgage Loan Sellers or their Affiliates for internal uses, including, without
limitation, internal correspondence and credit analysis of the Mortgage Loan
Sellers) that relate to the Mortgage Loans (other than the Non-Serviced Mortgage
Loans) and that are not required to be a part of a Mortgage File in accordance
with the definition thereof (including any original letters of credit), together
with all Escrow Payments and Reserve Accounts in the possession thereof, shall
be delivered to the Master Servicer or such other Person as may be directed by
the Master Servicer (at the expense of the applicable Mortgage Loan Seller) on
or before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders; provided,
however, the Master Servicer shall have no responsibility for holding documents
created or maintained by the Special Servicer hereunder and not delivered to the
Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each Mortgage
Loan Purchase Agreement, as in full force and effect on the Closing Date.
(g) In the event that the DDR Southeast Pool Pari Passu Note A-1
Companion Loan is securitized within 6 months of the Closing Date, the Trustee
shall forward to the applicable trustee of such securitization the Mortgage File
relating to the DDR Southeast Pool Whole Loan, other than the Mortgage Note
relating to the DDR Southeast Pool Pari Passu Note A-2 Companion Loan.
Section 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further limitations on review provided for in Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, all 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 and the other documents received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders and, with
respect to any original document in the Mortgage File for a Loan Pair, any
present or future Companion Holders. The Trustee hereby certifies to each of the
Depositor, the Master Servicer, the Special Servicer and each Mortgage Loan
Seller that, except as identified in the schedule of exceptions, which is
attached hereto as Exhibit C-1 without regard to the proviso in the definition
of "Mortgage File," each of the original executed Mortgage Notes (or lost note
affidavit), the Mortgage (or an executed copy thereof), the lender's title
policy (original or copy or marked-up title commitment marked as binding and
countersigned by the title company or its authorized agent or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company), a copy of any related Ground
Leases, the original (or copy if the original has been delivered to the Master
Servicer) of any related letters of credit (and the related transfer or
assignment documents, if applicable), as described in clauses (i), (ii), (vii),
(ix)(A) and (xii), respectively, of the definition of Mortgage File are in its
possession.
With respect to the schedule of exceptions described in the
preceding paragraph, within 15 Business Days (or, in the Controlling Class
Representative's reasonable discretion, 30 Business Days) of the Closing Date,
with respect to the documents specified in clauses (i), (ii), (vii), (ix)
(solely with respect to Ground Leases) and (xii) of the definition of Mortgage
File, the related Mortgage Loan Seller shall cure any material exception listed
therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c)). If such exception is not so
cured, the related Mortgage Loan Seller shall either (1) repurchase the related
Mortgage Loan, (2) with respect to exceptions relating to clause (xii) of the
definition of "Mortgage File", deposit with the Paying Agent (who shall promptly
notify the Master Servicer thereof) an amount, to be held in a Special Reserve
Account, equal to the amount of the undelivered letter of credit (in the
alternative, the related Mortgage Loan Seller may deliver to the Paying Agent,
with a certified copy to the Master Servicer and Trustee, a letter of credit for
the benefit of the Master Servicer on behalf of the Trustee and upon the same
terms and conditions as the undelivered letter of credit) which the Master
Servicer on behalf of the Trustee may use (or draw upon, as the case may be)
under the same circumstances and conditions as the Master Servicer would have
been entitled to draw on the undelivered letter of credit, or (3) with respect
to any exceptions relating to clauses (i), (ii) and (vii), deposit with the
Paying Agent on behalf of the Trustee an amount, to be held in trust in a
Special Reserve Account, equal to 25% of the Stated Principal Balance of the
related Mortgage Loan. Any letter of credit or funds deposited pursuant to
clauses (2) and (3) shall be held pursuant to the related Mortgage Loan Purchase
Agreement by the Paying Agent until the earlier of (x) the date on which the
Master Servicer certifies to the Trustee and the Controlling Class
Representative that such exception has been cured (or the Trustee certifies the
same to the Controlling Class Representative), at which time such funds or
letter of credit, as applicable, shall be returned to the related Mortgage Loan
Seller and (y) 30 Business Days or, if the Controlling Class Representative
extends the cure period, 45 Business Days after the Closing Date; provided,
however, if such exception is not cured within such 30 Business Days or 45
Business Days, as the case may be, (A) in the case of clause (2), the Paying
Agent shall retain such funds on deposit in the related Special Reserve Account,
or (B) in the case of clause (3), the related Mortgage Loan Seller shall
repurchase the related Mortgage Loan in accordance with the terms and conditions
of Section 2.03(b) or the related Mortgage Loan Purchase Agreement, at which
time such funds shall be applied to the Purchase Price of the related Mortgage
Loan.
(b) In addition, within 90 days after the Closing Date (and if any
exceptions are noted, a schedule of exceptions again every 90 days thereafter
until the second anniversary of the Closing Date, and a schedule of exceptions
every 180 days thereafter until the fifth anniversary of the Closing Date, and
thereafter upon request by any party hereto, any Mortgage Loan Seller or the
Majority Subordinate Certificateholder), the Trustee or the Custodian on its
behalf will review the Mortgage Files and certify (in a certificate
substantially in the form of Exhibit C-2) to each of the Depositor, the Master
Servicer, the Special Servicer and each Mortgage Loan Seller (with copies to the
Majority Subordinate Certificateholder) that, with respect to each Mortgage Loan
(and with respect to the Non-Serviced Mortgage Loans and their related
Non-Serviced Companion Loans, only those items required pursuant to the
definition of "Mortgage File") listed in the Mortgage Loan Schedule, except as
specifically identified in the schedule of exceptions annexed thereto, (i)
without regard to the proviso in the definition of "Mortgage File," all
documents specified in clauses (i), (ii), (iv)(a), (v) and (vii), and to the
extent provided in the related Mortgage File and actually known by a Responsible
Officer of the Trustee to be required, clauses (iii), (iv)(b), (iv)(c), (vi),
(viii) and (ix) through and including (xv) of the definition of "Mortgage File"
are in its possession, (ii) all documents delivered or caused to be delivered by
the applicable Mortgage Loan Seller constituting the related Mortgage File have
been reviewed by it and appear regular on their face and appear to relate to
such Mortgage Loan, (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with respect to the items specified in clauses (v) and (vi)(C) of
the definition of "Mortgage Loan Schedule" is correct and (iv) solely with
respect to the Companion Loans, all documents specified in clause (xvi) of the
definition of Mortgage File are in its possession. Further, with respect to the
documents described in clause (viii) of the definition of Mortgage File, the
Trustee may assume, for purposes of the certification delivered in this Section
2.02(b) and for purposes of determining (subject to the proviso at the end of
this sentence) where to file UCC Financing Statements, that the related Mortgage
File should include one state level UCC Financing Statement filing in the state
of incorporation of the Mortgagor for each Mortgaged Property (or with respect
to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor);
provided, however, to the extent the Trustee has actual knowledge or is notified
of any fixture or real property UCC Financing Statements filed in the county of
the state where the related Mortgaged Property is located, the Trustee shall
file an assignment to the Trust Fund 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 Fund pursuant to Section 2.01(d) will be delivered by the related Mortgage
Loan Seller to the Trustee on the new national forms, in recordable form and
completed pursuant to Revised Article IX of the UCC. The Trustee will submit
such UCC Financing Statements for filing in the state of incorporation of the
related Mortgagor as so indicated on the documents provided.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
(d) The Trustee may establish a Special Reserve Account which shall
be an Eligible Account, and the Trustee or its designee shall deposit any amount
required to be deposited in a Special Reserve Account within 1 Business Day of
receipt. The related Mortgage Loan Seller may direct the Trustee to invest or
cause the investment of the funds deposited in the Special Reserve Account in
Permitted Investments that bear interest or are sold at a discount and that
mature, unless payable on demand, no later than the Business Day prior to the
next P&I Advance Date. The Trustee shall act upon the written instructions of
the related Mortgage Loan Seller with respect to the investment of the funds in
the Special Reserve Account in such Permitted Investments; provided that in the
absence of appropriate and timely written instructions from the related Mortgage
Loan Seller, the Trustee shall not have any obligation to invest or direct the
investment funds in such Special Reserve Account. All income and gain realized
from the investment of funds deposited in such Special Reserve Account shall be
for the benefit of the related Mortgage Loan Seller and shall be withdrawn by
the Trustee or its designees and remitted to the related Mortgage Loan Seller on
each P&I Advance Date (net of any losses incurred), and the related Mortgage
Loan Seller shall remit to the Trustee from the related Mortgage Loan Seller's
own funds for deposit into such Special Reserve Account the amount of any Net
Investment Loss (net of Net Investment Earnings) in respect of such Permitted
Investments immediately upon realization of such Net Investment Losses and
receipt of written notice thereof from the Trustee; provided that the related
Mortgage Loan Seller shall not be required to deposit any loss on an investment
of funds in the Special Reserve 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 Special Reserve Account; provided
that such depository institution is not the same entity as such Mortgage Loan
Seller. The Special Reserve Account shall be considered an "outside reserve
fund" within the meaning of the REMIC Provisions, and such Special Reserve
Account (or any reimbursement from REMIC I or REMIC II with respect thereto)
will be beneficially owned by the related Mortgage Loan Seller, who shall be
taxable on all income, if any, with respect thereto.
(e) With respect to exceptions related to clause (xii) of the
definition of "Mortgage File" and any cash or substitute letters of credit held
by the Trustee in the Special Reserve Account from time to time, if
circumstances arise in servicing the related Mortgage Loan such that the Master
Servicer or Special Servicer, as the case may be, is entitled to draw upon the
undelivered letter of credit, the Master Servicer or Special Servicer, as the
case may be, shall present an Officer's Certificate to the Trustee requesting
that the cash or substitute letter of credit held in the Special Reserve
Account, be remitted or released, as the case may be, and the Trustee shall
remit such cash or release such substitute letter of credit within 1 Business
Day of receipt of such Officer's Certificate. Upon release of any substitute
letter of credit to the Master Servicer or Special Servicer, the Trustee shall
no longer be responsible for such letter of credit.
Section 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File (including that
part relating to a Non-Serviced Mortgage Loan) has not been properly executed,
is missing (beyond the time period required for its delivery hereunder),
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule, or does not
appear to be regular on its face (each a "Document Defect"), or discovers or
receives notice of a breach of any representation or warranty relating to any
Mortgage Loan set forth in the applicable Mortgage Loan Purchase Agreement (a
"Breach"), the party discovering such Document Defect or Breach shall give
written notice (which notice, in respect of any obligation of the Trustee to
provide notice of a Document Defect, shall be deemed given by the delivery of
the certificate as required by Section 2.02(a)) to the other parties hereto, to
the Majority Subordinate Certificateholder and to the Rating Agencies of such
Document Defect or Breach. Promptly upon becoming aware of any Document Defect
or Breach (including through such written notice provided by any party hereto or
the Majority Subordinate Certificateholder as provided above), if any party
hereto determines that such Document Defect or Breach materially and adversely
affects the value of the affected Mortgage Loan, the interest of the Trust Fund
therein or the interests of any Certificateholder, such party shall notify the
Master Servicer of such determination and promptly after receipt of such notice,
the Master Servicer, or with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, shall request in writing (with a copy to the other parties
hereto, the Majority Subordinate Certificateholder, the Rating Agencies and the
Controlling Class Representative (if different from the Majority Subordinate
Certificateholder)) that the applicable Mortgage Loan Seller, not later than 90
days from receipt of such written request (or, in the case of a Document Defect
or Breach relating to a Mortgage Loan not being a "qualified mortgage" within
the meaning of the REMIC Provisions, not later than 90 days after any party to
this Agreement discovers such Document Defect or Breach) (i) cure such Document
Defect or Breach, as the case may be, in accordance with Section 3(c) of the
applicable Mortgage Loan Purchase Agreement, (ii) repurchase the affected
Mortgage Loan (other than with respect to the Non-Serviced Mortgage Loans, for
which no substitution shall be permitted) in accordance with Section 3(c) of the
related Mortgage Loan Purchase Agreement, or (iii) within two years of the
Closing Date, substitute a Qualified Substitute Mortgage Loan (other than with
respect to the Non-Serviced Mortgage Loans, for which no substitution shall be
permitted) for such affected Mortgage Loan and pay the Master Servicer for
deposit into the Certificate Account any Substitution Shortfall Amount in
connection therewith in accordance with Sections 3(c) and 3(d) of the applicable
Mortgage Loan Purchase Agreement; provided, however, if such Document Defect or
Breach is capable of being cured, but not within such 90 day period, such
Document Defect or Breach does not relate to the Mortgage Loan not being treated
as a "qualified mortgage" within the meaning of the REMIC Provisions, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Document Defect or Breach within such 90 day period, the
applicable Mortgage Loan Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase the related Mortgage Loan);
provided, further, with respect to such additional 90 day period the applicable
Mortgage Loan Seller shall have delivered an Officer's Certificate to the
Trustee setting forth what actions the applicable Mortgage Loan Seller is
pursuing in connection with the cure thereof and stating that the applicable
Mortgage Loan Seller anticipates such Document Defect or Breach will be cured
within the additional 90 day period; provided, further, no Document Defect
(other than with respect to a Mortgage Note, Mortgage, title insurance policy,
Ground Lease, any letter of credit, franchise agreement or any comfort letter
and comfort letter transfer documents (collectively, the "Material Core
Documents")) shall be considered to materially and adversely affect the
interests of any Certificateholder, the interest of the Trust Fund therein or
the value of the related Mortgage Loan unless the document with respect to which
the Document Defect exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any Mortgagor or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the Mortgage Loan or for any immediate significant servicing
obligations; provided, further, with respect to Document Defects which
materially and adversely affect the interest of any Certificateholder, the
interests of the Trust therein or the value of the related Mortgage Loan, other
than with respect to Document Defects relating to the Material Core Documents,
any applicable cure period following the initial 90 day cure period may be
extended by the Master Servicer or the Special Servicer if the document involved
is not needed imminently. Such extension will end upon 30 days notice of such
need as reasonably determined by the Master Servicer or Special Servicer (with a
possible 30 day extension if the Master Servicer or Special Servicer agrees that
the applicable Mortgage Loan Seller is diligently pursuing a cure). Pursuant to
the related Mortgage Loan Purchase Agreement, the related Mortgage Loan Seller
shall cure all Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust Fund therein or
the value of the related Mortgage Loan, regardless of the document involved, no
later than two years following the Closing Date; provided, however, the initial
90 day cure period referenced above shall not be reduced. For a period of two
years from the Closing Date, so long as there remains any Mortgage File as to
which there is any uncured Document Defect and so long as the applicable
Mortgage Loan Seller shall provide the Officer's Certificate pursuant to Section
3(c) of the applicable Mortgage Loan Purchase Agreement, the Trustee shall on a
quarterly basis prepare and deliver to the other parties a written report as to
the status of such uncured Document Defects as provided in this Section 2.03. If
the affected Mortgage Loan is to be repurchased or substituted, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price or the Substitution Shortfall Amount, as
applicable, are to be wired. Any such repurchase or substitution of a Mortgage
Loan shall be on a whole loan, servicing released basis.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the immediately preceding paragraph,
(ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document
Defect or Breach does not constitute a Document Defect or Breach, as the case
may be, as to any other Crossed Loan in such Crossed Group (without regard to
this paragraph), then the applicable Document Defect or Breach, as the case may
be, will be deemed to constitute a Document Defect or Breach, as the case may
be, as to any other Crossed Loan in the Crossed Group for purposes of this
paragraph, and the related Mortgage Loan Seller will be required to repurchase
or substitute for such other Crossed Loan(s) in the related Crossed Group as
provided in the immediately preceding paragraph unless such other Crossed Loans
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution and repurchase of Mortgage Loans set forth herein. In the event
that the remaining Crossed Loans in such Crossed Group satisfy the
aforementioned criteria, the Mortgage Loan Seller may elect either to repurchase
or substitute for only the affected Crossed Loan as to which the related Breach
or Document Defect exists or to repurchase or substitute for all of the Crossed
Loans in the related Crossed Group. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents. All other terms
of the Mortgage Loans shall remain in full force and effect without any
modification thereof.
With respect to any Crossed Loan, to the extent that the applicable
Mortgage Loan Seller is required to repurchase or substitute for such Mortgage
Loan in the manner prescribed in this Section 2.03(a) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Depositor will, as set forth in the
related Mortgage Loan Purchase Agreement (any expenses incurred by the Trustee
or the Master Servicer in connection with any modification or accommodation
referred to in such Mortgage Loan Purchase Agreement (including but not limited
to reasonable attorney fees) shall be paid by the related Mortgage Loan Seller),
forbear from enforcing any remedies against the other's Primary Collateral but
each will be permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the Trustee.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing Officer of
the Master Servicer certifying as to the receipt of the applicable Purchase
Price(s) in the Certificate Account (in the case of any such repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the Certificate
Account and upon the delivery of the Mortgage File(s) and the Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively (in the case of any such substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it, in each case without recourse, representation or warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or substituted Mortgage
Loan, as applicable, being released pursuant to this Section 2.03, and (ii) the
Trustee, the Custodian, the Master Servicer, and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of them of
a receipt executed by the applicable Mortgage Loan Seller, all portions of the
Mortgage File and other documents pertaining to each such Mortgage Loan
possessed by it, other than documents that relate to the repurchase by the
Mortgage Loan Seller and are subject to privilege or work product protection,
and the Master Servicer and the Special Servicer shall release to the applicable
Mortgage Loan Seller any Escrow Payments and Reserve Funds held by it in respect
of such repurchased or substituted Mortgage Loan; provided that such tender by
the Trustee or the Custodian shall be conditioned upon its receipt from the
Master Servicer or the Special Servicer of a Request for Release. Thereafter,
the Trustee, the Custodian, the Master Servicer and the Special Servicer shall
have no further responsibility with regard to the related repurchased Mortgage
Loan(s) or deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer and are necessary to permit the Master
Servicer to do so. The Master Servicer shall indemnify the Trustee for any
reasonable costs, fees, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse by the Master Servicer of such
powers of attorney. At the time a substitution is made, the related Mortgage
Loan Purchase Agreement will provide that the Mortgage Loan Seller shall deliver
the related Mortgage File to the Trustee and certify that the substitute
Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan on or prior
to the related date of substitution shall not be part of the Trust Fund or REMIC
I and will (to the extent received by the Master Servicer) be remitted by the
Master Servicer to the applicable Mortgage Loan Seller promptly following
receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Sellers under
Section 3 of the applicable Mortgage Loan Purchase Agreement. The Trustee shall
include in the immediately succeeding Distribution Date Statement a notification
to the recipients of such Distribution Date Statement of any repurchase or
substitution of a Mortgage Loan required pursuant to the terms of the related
Mortgage Loan Purchase Agreement.
(f) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
the applicable Mortgage Loan Purchase Agreement, then the Master Servicer shall
(and the Special Servicer may) direct the related Mortgage Loan Seller in
writing to wire transfer to the Certificate Account, within 90 days of such
Mortgage Loan Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Trust Fund that are the basis of such Breach. Upon its
making such deposit, the related Mortgage Loan Seller shall be deemed to have
cured such Breach in all respects. Provided such payment is made in full, this
paragraph describes the sole remedy available to the Certificateholders, the
Master Servicer, the Special Servicer, and the Trustee on their behalf regarding
any such Breach and the related Mortgage Loan Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach. Amounts deposited in the Certificate Account pursuant to this
paragraph shall be used for the reimbursement or payment of costs related to
such Breach.
(g) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under this Agreement or with respect to which the related
Mortgaged Property has been foreclosed and which is the subject of a repurchase
claim under the related Mortgage Loan Purchase Agreement, the Special Servicer,
with the consent of the Controlling Class Representative, shall notify the
related Mortgage Loan Seller in writing of its intention to sell such Defaulted
Mortgage Loan or REO Property at least 45 days prior to any such action. The
related Mortgage Loan Seller shall have 10 Business Days to determine whether or
not to consent to such sale. If the related Mortgage Loan Seller consents to
such sale or a court of competent jurisdiction determines that the related
Mortgage Loan Seller was liable under the related Mortgage Loan Purchase
Agreement to repurchase such Defaulted Mortgage Loan or REO Property then such
Mortgage Loan Seller shall be liable for the difference (if any) between the
price of the Mortgage Loan or REO Property as sold and the price which the
related Mortgage Loan Seller would have to pay if it repurchased such Defaulted
Mortgage Loan or REO Property. If the related Mortgage Loan Seller does not
consent to such sale, the Special Servicer shall contract with a Determination
Party as to the merits of such sale. If the related Determination Party
determines that such sale is in accordance with the Servicing Standard and the
provisions of this Agreement with respect to the sale of Defaulted Mortgage
Loans or REO Properties and subsequent to such a sale, a court of competent
jurisdiction determines that related Mortgage Loan Seller was liable under the
related Mortgage Loan Purchase Agreement and required to repurchase such
Defaulted Mortgage Loan or REO Property in accordance with the terms thereof,
then pursuant to the related Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller shall remit to the Special Servicer an amount equal to the
difference (if any) between the proceeds of the related action and the price at
which the related Mortgage Loan Seller would have been obligated to pay had the
related Mortgage Loan Seller repurchased such Defaulted Mortgage Loan or REO
Property in accordance with the terms of the related Mortgage Loan Purchase
Agreement, including the costs related to contracting with the related
Determination Party. If the related Determination Party determines that the sale
of the related Defaulted Mortgage Loan or REO Property is not in accordance with
the Servicing Standard and the provision of this Agreement with respect to the
sale of Defaulted Mortgage Loans or REO Properties and the Special Servicer
subsequently sells such Mortgage Loan or REO Property, then the related Mortgage
Loan Seller shall not be liable for any such difference (nor any cost of
contracting with the Determination Party). In the event that (a) the Special
Servicer ignores the determination of the Determination Party and sells the
related Defaulted Mortgage Loan or REO Property and/or (b) a court of competent
jurisdiction determines that the related Mortgage Loan Seller is not obligated
to repurchase the related Defaulted Mortgage or REO Property, the costs of
contracting with the Determination Party will constitute an Additional Trust
Fund Expense. If the related Mortgage Loan Seller is required pursuant to the
related Mortgage Loan Purchase Agreement to remit the amounts set forth in this
Section 2.03(g), the Special Servicer shall designate the Certificate Account as
the account to which such funds shall be wired.
Section 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer, the Paying Agent 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 North Carolina;
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation
or bylaws 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 Depositor has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, 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 Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement 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 Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Depositor to perform its obligations under this Agreement or the
financial condition of the Depositor;
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer
or similar law in effect in any applicable jurisdiction;
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's good faith and reasonable judgment,
is likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor;
(viii) Immediately prior to the transfer of the Mortgage Loans to
the Trust Fund pursuant to this Agreement, (A) the Depositor had good and
marketable title to, and was the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans and all servicing rights pertaining
thereto; and
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security interests.
(b) The representations and warranties of the Depositor set forth in
Sections 2.04(a) and 8.17 shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties.
Section 2.05. Conveyance of Mortgage Loans; Acceptance of REMIC I
and Additional Interest Grantor Trust by Trustee.
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 (a) the Mortgage
Loans (other than any Additional Interest related thereto) and the other
property comprising REMIC I to the Trustee for the benefit of the Holders of the
Class R I Certificates (in respect of the residual interest in REMIC I) and
REMIC II as the holder of the REMIC I Regular Interests and (b) the Additional
Interest and the other property comprising the Additional Interest Grantor Trust
to the Trustee for the benefit of the Holders of the Class Z Certificates. The
Trustee acknowledges the assignment to it of the Mortgage Loans and the other
property comprising REMIC I and the Additional Interest Grantor Trust, and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of REMIC II as the holder of the REMIC I Regular Interests and present
and future holders of the Certificates (other than the Class Z Certificates)
and, as to the Additional Interest Grantor Trust, for the benefit of the Holders
of the Class Z Certificates.
Section 2.06. Issuance of the REMIC I Regular Interests; Execution,
Authentication and Delivery of Class R-I Certificates.
Concurrently with the assignment to the Trustee of the Mortgage
Loans (other than any Additional Interest related thereto) and in exchange
therefor, the Trustee acknowledges the issuance of the REMIC I Regular
Interests, to or upon the order of the Depositor and, pursuant to the written
request of the Depositor executed by an officer of the Depositor, has executed,
as the Certificate Registrar and the Authenticating Agent has authenticated and
delivered to or upon the order of the Depositor, the Class R-I Certificates.
Section 2.07. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.
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 REMIC I Regular
Interests to the Trustee for the benefit of the respective Holders of the REMIC
II Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of the REMIC II
Certificates.
Section 2.08. Execution, Authentication and Delivery of REMIC II
Certificates and Class A-4FL and Class A-MFL Regular Interests; Acceptance of
Class A-4FL Grantor Trust and Class A-MFL Grantor Trust by Trustee.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, and pursuant to the written request
of the Depositor, executed by an affiliate of the Depositor, the Trustee, as
Certificate Registrar, has executed, and the Trustee, as Authenticating Agent,
has authenticated and delivered to or upon the order of the Depositor, the REMIC
II Certificates in authorized denominations and has issued the Class A-4FL
Regular Interest and Class A-MFL Regular Interest evidencing the entire
beneficial ownership of REMIC II. The rights of the holders of the respective
Classes of REMIC II Certificates and the Trustee as Holder of the Class A-4FL
Regular Interest and Class A-MFL Regular Interest to receive distributions from
the proceeds of REMIC II in respect of their REMIC II Certificates and the Class
A-4FL Regular Interest and Class A-MFL Regular Interest, and all ownership
interests evidenced or constituted by the respective Classes of REMIC II
Certificates and the Class A-4FL Regular Interest and Class A-MFL Regular
Interest in such distributions, shall be as set forth in this Agreement.
Section 2.09. Issuance of Class A-4FL Grantor Trust Interest and
Class A-MFL Grantor Trust Interest; Acceptance of Class A-4M Trust and Class
A-MM Trust by Trustee; Execution, Authentication and Delivery of the Class A-4FL
and A-MFL Certificates.
Concurrently with the assignment to the Trustee of the Class A-4FL
Regular Interest by the Depositor, the execution of the Class A-4FL Swap
Contract and the establishment of the Class A-4FL Floating Rate Account
comprising the A-4FL Grantor Trust and in exchange therefor, the Trustee
acknowledges the issuance of the Class A-4FL Grantor Trust Interest, to or upon
the order of the Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, the Depositor does hereby assign
without recourse all right, title and interest in and to the Class A-4FL Grantor
Trust Interest to the Trustee on behalf of the Class A-4M Trust for the benefit
of the respective Holders of the Class A-4FL Component Certificates. The Trustee
acknowledges assignment to it of the Class A-4FL Grantor Trust Interest and
declares that it will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the Class A-4FL Component Certificates and
the Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, as Certificate Registrar, authenticated,
as Authenticating Agent and delivered to or upon the order of the Depositor, the
Class A-4M and Class A-4MS Certificates.
Concurrently with the assignment to the Trustee of the Class A-MFL
Regular Interest by the Depositor, the execution of the Class A-MFL Swap
Contract and the establishment of the Class A-MFL Floating Rate Account
comprising the A-MFL Grantor Trust and in exchange therefor, the Trustee
acknowledges the issuance of the Class A-MFL Grantor Trust Interest, to or upon
the order of the Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, the Depositor does hereby assign
without recourse all right, title and interest in and to the Class A-MFL Grantor
Trust Interest to the Trustee on behalf of the Class A-MM Trust for the benefit
of the respective Holders of the Class A-MFL Component Certificates. The Trustee
acknowledges assignment to it of the Class A-MFL Grantor Trust Interest and
declares that it will hold the same in trust for the exclusive use and benefit
of all present and future Holders of the Class A-MFL Component Certificates and
the Trustee, pursuant to the written request of the Depositor executed by an
officer of the Depositor, has executed, as Certificate Registrar, authenticated,
as Authenticating Agent and delivered to or upon the order of the Depositor, the
Class A-MM and Class A-MMS Certificates.
Section 2.10. Execution, Authentication and Delivery of Class Z
Certificates.
Concurrently with the assignment to the Trustee of the Additional
Interest, and in exchange therefor and the establishment of the Additional
Interest Account, the Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, as Certificate Registrar,
authenticated, as Authenticating Agent and delivered to or upon the order of the
Depositor, the Class Z Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans (other than the Non-Serviced Mortgage
Loans) and Companion Loans (other than the Non-Serviced Companion Loans) that
each is obligated to service and administer pursuant to this Agreement on behalf
of the Trustee, for the benefit of the Certificateholders and in the case of the
Companion Loans, the related Companion Holder, in accordance with any and all
applicable laws, the terms of this Agreement (and, with respect to a Loan Pair,
the related Intercreditor Agreement), the terms of the respective Mortgage
Loans, and, if applicable, the Companion Loans and, to the extent consistent
with the foregoing, in accordance with the Servicing Standard. With respect to
any Loan Pair, in the event of a conflict between this Agreement and the related
Intercreditor Agreement, the Intercreditor Agreement will control; provided that
in no event shall the Master Servicer or Special Servicer take any action or
omit to take any action in accordance with the terms of any Intercreditor
Agreement that would cause such servicer to violate the Servicing Standard or
the REMIC Provisions. Without limiting the foregoing, and subject to Section
3.21, (i) the Master Servicer shall service and administer all Mortgage Loans
and the Companion Loans (other than the Non-Serviced Mortgage Loans and their
related Non-Serviced Companion Loans) that are not Specially Serviced Mortgage
Loans, and (ii) the Special Servicer shall service and administer each Specially
Serviced Mortgage Loan (other than the Non-Serviced Mortgage Loans and their
related Non-Serviced Companion Loans) and related REO Property and shall render
such services with respect to all such Mortgage Loans, Companion Loans and REO
Properties as are specifically provided for herein; provided that the Master
Servicer shall continue to receive payments, make all calculations, and prepare,
or cause to be prepared, all reports 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 or as the Special Servicer reasonably requests to enable it
to perform its responsibilities under this Agreement; provided, further,
however, the Master Servicer shall not be liable for its failure to comply with
such duties insofar as such failure results from a failure by the Special
Servicer to provide sufficient information to the Master Servicer to comply with
such duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder; provided, further, the Special Servicer shall not be
liable for its failure to comply with such duties insofar as such failure
results from a failure by the Master Servicer to provide sufficient information
to the extent required herein to the Special Servicer to comply with such duties
or failure by the Master Servicer to otherwise comply with its obligations
hereunder. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
The parties hereto acknowledge that the Non-Serviced Mortgage Loans
and their related Non-Serviced Companion Loans are being serviced and
administered under the related Non-Serviced Pooling and Servicing Agreement. The
Master Servicer, the Special Servicer, the Trustee and the Paying Agent shall
have no obligation or authority (i) to service and administer the Non-Serviced
Mortgage Loans or their related Non-Serviced Companion Loans (except for the
limited duties with respect to the Non-Serviced Mortgage Loans expressly
provided herein), (ii) to supervise the related Non-Serviced Master Servicer,
related Non-Serviced Special Servicer, related Non-Serviced Trustee or (iii) to
make Servicing Advances or P&I Advances (except to the limited extent described
in Section 4.03 with respect to P&I Advances to be made by the Master Servicer
or the Trustee on the Non-Serviced Mortgage Loans). In addition to any other
obligations expressly set forth herein by specific reference to the Non-Serviced
Mortgage Loans, the Master Servicer, the Special Servicer, the Trustee and the
Paying Agent shall have the following obligations with respect to the
Non-Serviced Mortgage Loans, as the case may be:
(i) The Trustee and the Paying Agent shall have the obligations
described under Section 2.02 with respect to the Mortgage File for the
Non-Serviced Mortgage Loans;
(ii) Each of the Master Servicer, the Special Servicer and the
Trustee shall have the obligations applicable to such party under Section
2.03 with respect to the Non-Serviced Mortgage Loans;
(iii) The Master Servicer shall have the obligations described under
Sections 3.04 and 3.05 with respect to all amounts received from the
related Non-Serviced Master Servicer with respect to the Non-Serviced
Mortgage Loans;
(iv) The Trustee shall have the obligations described under Section
3.10 with respect to the Mortgage File for the Non-Serviced Mortgage
Loans;
(v) Upon receipt of information and reports on the Non-Serviced
Mortgage Loans from the related Non-Serviced Master Servicer, the Master
Servicer shall include such information in the reports and notices
required under Section 3.12;
(vi) The Master Servicer and the Paying Agent shall each have the
obligations applicable to such party under Section 3.15 with respect to
information and reports it has received regarding the Non-Serviced
Mortgage Loans; and
(vii) The Master Servicer shall have the obligations described under
Section 3.19(a) with respect to any Prepayment Interest Shortfall on the
Non-Serviced Mortgage Loans.
The obligation of the Master Servicer to provide information and
collections to the Paying Agent and the Certificateholders with respect to the
Non-Serviced Mortgage Loans shall be dependent on its receipt of the
corresponding information and collections from the related Non-Serviced Master
Servicer or the related Non-Serviced Special Servicer, as applicable.
Notwithstanding anything to the contrary herein, with respect to the
DDR Southeast Pool Loan, prior to the securitization of the DDR Southeast Pari
Passu Note A-1 Companion Loan, the Master Servicer and Special Servicer shall
service the DDR Southeast Pool Loan in accordance with the terms of the related
Intercreditor Agreement and the "model pooling agreement" referred to therein;
provided, however, that if the DDR Southeast Pool Pari Passu Note A-1 Companion
Loan is not securitized within 6 months of the Closing Date, the Master
Servicer, Special Servicer and Trustee shall continue to service and administer
the DDR Southeast Pool Loan and the related Companion Loans as provided in this
Section 3.01.
(b) Subject to Section 3.01(a) and Section 6.11, the Master Servicer
and the Special Servicer each shall have full power and authority, acting alone,
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable, including filing or
initiating legal actions or proceedings as the named plaintiff in their
representative capacities on behalf of the Trust. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, on behalf of the Trustee and by referencing its representative
capacity, with respect to each of the Mortgage Loans and Companion Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee and, pursuant to each Intercreditor Agreement, the Companion Holders to
execute and deliver, on behalf of the Certificateholders, the Companion Holders
and the Trustee or any of them, (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by any Mortgage or other security document in the related
Mortgage File on the related Mortgaged Property and related collateral; (ii) in
accordance with the Servicing Standard and subject to Section 3.20 and Section
6.11, 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,
discharge, or assignment, and all other comparable instruments; and (iv) pledge
agreements and other defeasance documents in connection with a defeasance
contemplated pursuant to Section 3.20(h). Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, the Trustee shall not be held liable for any misuse of any
such power of attorney by the Master Servicer or the Special Servicer; provided,
further, the Master Servicer and the Special Servicer shall not, without the
Trustee's written consent, (A) initiate any action in the Trustee's name without
indicating the Master Servicer's or Special Servicer's representative capacity
or (B) cause the Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venture, partner or
agent. Unless the same Person acts as both Master Servicer and Special Servicer,
the Master Servicer shall not be responsible for the actions of or failure to
act by the Special Servicer and the Special Servicer shall not be responsible
for the actions of or the failure to act by the Master Servicer.
(d) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer make a Servicing Advance with respect to any Companion
Loan to the extent the related Co-Lender Loan has been paid in full or is no
longer included in the Trust Fund.
(e) Servicing and administration of each Companion Loan (other than
the Non-Serviced Companion Loans) shall continue hereunder for so long as the
corresponding Co-Lender Loan (other than the Non-Serviced Mortgage Loans) or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust Fund or any party hereto in accordance with the related Intercreditor
Agreement remain due and owing; provided, however, if any Companion Loan (other
than the Non-Serviced Companion Loans) is securitized, the Master Servicer's
servicing obligations and duties with respect to the related Companion Loan
shall be limited to those obligations and duties described in the related
Intercreditor Agreement and this Agreement.
Section 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Mortgage Loans and
Companion Loans, and any guaranties thereof, it is obligated to service
hereunder and shall, to the extent such procedures shall be consistent with this
Agreement, follow such collection procedures in accordance with the Servicing
Standard; provided, however, nothing herein shall be construed as an express or
implied guarantee by the Master Servicer or the Special Servicer of
collectability; provided, further, with respect to the Mortgage Loans that have
Anticipated Repayment Dates, so long as the related Mortgagor is in compliance
with each provision of the related Mortgage Loan documents, the Master Servicer
and Special Servicer (including the Special Servicer in its capacity as a
Certificateholder), shall not take any enforcement action with respect to the
failure of the related Mortgagor to make any payment of Additional Interest or
principal in excess of the principal component of the constant Periodic Payment,
other than requests for collection, until the maturity date of the related
Mortgage Loan; provided that the Master Servicer or Special Servicer, as the
case may be, may take action to enforce the Trust Fund's right to apply excess
cash flow to principal in accordance with the terms of the Mortgage Loan
documents. Consistent with the foregoing and subject to Section 3.20, the
Special Servicer, with regard to a Specially Serviced Mortgage Loan, or the
Master Servicer, with regard to a Mortgage Loan or Companion Loan (other than
the Non-Serviced Mortgage Loans or the Non-Serviced Companion Loans) that is not
a Specially Serviced Mortgage Loan, may waive any Penalty Interest or late
payment charge in connection with any payment on a Mortgage Loan or Companion
Loan (other than the Non-Serviced Mortgage Loans or the Non-Serviced Companion
Loans).
(b) All amounts collected in respect of any Mortgage Loan or
Companion Loan (other than the Non-Serviced Companion Loans) in the form of
payments from Mortgagors, and/or guaranties, Liquidation Proceeds (insofar as
such Liquidation Proceeds are of the nature described in clauses (i) through
(iii) of the definition thereof) or Insurance Proceeds shall be applied to
either 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, with respect to a Loan Pair, the related Intercreditor Agreement)
or, if required pursuant to the express provisions of the related Mortgage, or
as determined by the Master Servicer or Special Servicer in accordance with the
Servicing Standard, to the repair or restoration of the related Mortgaged
Property, and, in the absence of such express provisions, shall be applied for
purposes of this Agreement: first, as a recovery of any related and unreimbursed
Advances plus unreimbursed interest accrued thereon; second, as a recovery of
Nonrecoverable Advances, Unliquidated Advances and Workout Delayed Reimbursement
Amounts (including interest on such Nonrecoverable Advances), that were paid
from collections on the Mortgage Loans (allocable to principal) and resulted in
principal from the Mortgage Pool distributed to the Certificateholders being
reduced pursuant to Section 3.05(a) hereof; third, as a recovery of accrued and
unpaid interest at the related Mortgage Rate on such Mortgage Loan, to the
extent such amounts have not been previously advanced, and exclusive of any
portion thereof that constitutes Additional Interest; fourth, as a recovery of
principal of such Mortgage Loan then due and owing, to the extent such amounts
have not been previously advanced, including, without limitation, by reason of
acceleration of the Mortgage Loan following a default thereunder; fifth, in
accordance with the normal servicing practices of the Master Servicer or the
Special Servicer, as a recovery of any other amounts then due and owing under
such Mortgage Loan (other than Additional Interest), including, without
limitation, Prepayment Premiums, Yield Maintenance Charges and Penalty Interest;
sixth, as a recovery of any remaining principal of such Mortgage Loan to the
extent of its entire remaining unpaid principal balance; and seventh, with
respect to any ARD Loan after its Anticipated Repayment Date, as a recovery of
any unpaid Additional Interest. All amounts collected on any Mortgage Loan in
the form of Liquidation Proceeds of the nature described in clauses (iv) through
(vi) of the definition thereof shall be deemed to be applied: first, as a
recovery of any related and unreimbursed Advances plus interest accrued thereon;
second, as a recovery of accrued and unpaid interest at the related Mortgage
Rate on such Mortgage Loan to but not including the Due Date in the Collection
Period of receipt, to the extent such amounts have not been previously advanced,
and exclusive of any portion thereof that constitutes Additional Interest;
third, as a recovery of principal, to the extent such amounts have not been
previously advanced, of such Mortgage Loan to the extent of its entire unpaid
principal balance; and fourth, with respect to any ARD Loan after its
Anticipated Repayment Date, as a recovery of any unpaid Additional Interest. No
such amounts shall be applied to the items constituting additional servicing
compensation as described in the first sentence of either Section 3.11(b) or
3.11(d) unless and until all principal and interest then due and payable on such
Mortgage Loan has been collected. Amounts collected on any REO Loan shall be
deemed to be applied in accordance with the definition thereof. The provisions
of this paragraph with respect to the application of amounts collected on any
Mortgage Loan shall not alter in any way the right of the Master Servicer, the
Special Servicer or any other Person to receive payments from the Certificate
Account as set forth in clauses (ii) through (xvi) of Section 3.05(a) from
amounts so applied.
(c) Within 60 days after the later of (i) the Closing Date and (ii)
the Master Servicer's receipt of the applicable letter of credit, the Master
Servicer shall notify each provider of a letter of credit for each Mortgage Loan
identified as having a letter of credit on the Mortgage Loan Schedule, that the
Master Servicer or the Special Servicer on behalf of the Trustee for the benefit
of the Certificateholders shall be the beneficiary under each such letter of
credit. If a draw upon a letter of credit is needed before its transfer to the
Trust Fund can be completed, the applicable Mortgage Loan Seller shall draw upon
such letter of credit for the benefit of the Trust Fund pursuant to written
instructions from the Master Servicer.
(d) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will promptly notify the Trustee. Subject to
the provisions of Section 3.02(a) hereof, none of the Master Servicer, the
Trustee or the Special Servicer shall be responsible for any such Additional
Interest not collected after notice from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standard, hold such escrows, letters of credit and proceeds thereof as
additional collateral and not apply such items to reduce the principal balance
of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents.
Section 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans (other than
the Non-Serviced Mortgage Loans) and Companion Loans (other than the
Non-Serviced Companion Loans), establish and maintain one or more accounts (the
"Servicing Accounts"), into which all Escrow Payments shall be deposited and
retained, and shall administer such accounts in accordance with the terms of the
Mortgage Loan documents. Each Servicing Account shall be an Eligible Account.
Withdrawals of amounts so collected from a Servicing Account may be made (to the
extent amounts have been escrowed for such purpose) only to: (i) effect payment
of items for which Escrow Payments were collected and comparable items; (ii)
reimburse the Master Servicer or the Trustee for any unreimbursed Servicing
Advances; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; (v) pay itself interest and investment
income on balances in the Servicing Account as described in Section 3.06(b), if
and to the extent not required by law or the terms of the applicable Mortgage
Loan to be paid to the Mortgagor; (vi) withdraw amounts deposited in error or
(vii) clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. To the extent permitted by law or the
applicable Mortgage Loan, funds in the Servicing Accounts may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06 and
in accordance with the terms of the related Mortgage Loan documents. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. The Servicing
Accounts shall not be considered part of the segregated pool of assets
constituting REMIC I, REMIC II or the Grantor Trusts.
(b) The Master Servicer (for the Mortgage Loans other than the
Specially Serviced Mortgage Loans, Non-Serviced Mortgage Loans and REO Loans) or
the Special Servicer (for Specially Serviced Mortgage Loans and REO Loans) shall
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for the payment of such items (including
renewal premiums) and shall effect payment thereof 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. For purposes of effecting any such
payment for which it is responsible, the Master Servicer shall apply Escrow
Payments (at the direction of the Special Servicer for Specially Serviced
Mortgage Loans and REO Loans) as allowed under the terms of the related Mortgage
Loan or Companion Loan or, if such Mortgage Loan or Companion Loan does not
require the related Mortgagor to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
the Master Servicer shall, as to all Mortgage Loans or Companion Loans, 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) The Master Servicer shall, as to all Mortgage Loans and
Companion Loans (other than the Non-Serviced Mortgage Loans and their related
Non-Serviced Companion Loans), subject to Section 3.01(d), make a Servicing
Advance with respect to the related Mortgaged Property in an amount equal to all
such funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments, penalties and other similar items, (ii) ground rents
(if applicable), and (iii) premiums on Insurance Policies in each instance if
and to the extent Escrow Payments (if any) collected from the related Mortgagor
are insufficient to pay such item when due and the related Mortgagor has failed
to pay such item on a timely basis; provided that the Master Servicer shall not
make any Servicing Advance prior to the penalty date or cancellation date, as
applicable, if the Master Servicer reasonably anticipates in accordance with the
Servicing Standard that the Mortgagor will pay such amount on or before the
penalty date or cancellation date; provided, further, the Master Servicer shall
not be obligated to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance but may, but is not required to, pay such
amounts out of funds in the Certificate Account if it determines that such
payment would be in the best interests of the Certificateholders and such
payment may be withdrawn from amounts in the Certificate Account; provided that
the Master Servicer may conclusively rely upon any such nonrecoverability
determination by the Special Servicer. All such Servicing Advances or amounts
withdrawn from the Certificate Account shall be reimbursable in the first
instance from related collections from the Mortgagors, and further as provided
in Section 3.05(a). No costs incurred by the Master Servicer or the Trustee in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
of this Agreement, including, without limitation, the Paying Agent's calculation
of monthly distributions to Certificateholders, be added to the unpaid Stated
Principal Balances of the related Mortgage Loans or Companion Loans,
notwithstanding that the terms of such Mortgage Loans or Companion Loans so
permit. The foregoing shall in no way limit the Master Servicer's ability to
charge and collect from the Mortgagor such costs together with interest thereon.
In addition to any other rights to recovery set forth herein with respect to any
Servicing Advance made on the Non-Serviced Mortgage Loans, the Master Servicer,
the Special Servicer or the Trustee, as applicable, shall be entitled to
recovery of a portion of such amounts without duplication from the holder of the
Pari Passu Companion Loan pursuant to the terms of the related Intercreditor
Agreement.
The Special Servicer shall give the Master Servicer and the Trustee
not less than 5 Business Days' notice with respect to Servicing Advances to be
made on any Specially Serviced Mortgage Loan or REO Property, before the date on
which the Master Servicer is required to make any Servicing Advance with respect
to a given Mortgage Loan, Companion Loan or REO Property; provided, however,
only 2 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). In
addition, the Special Servicer shall provide the Master Servicer and the Trustee
with such information in its possession as the Master Servicer or the Trustee,
as applicable, may reasonably request to enable the Master Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by the Special
Servicer that the Master Servicer make a Servicing Advance shall be deemed to be
a determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Servicing Advance, and the Master Servicer shall be
entitled to conclusively rely on such determination. On the fourth Business Day
before each Distribution Date, the Special Servicer shall report to the Master
Servicer the Special Servicer's determination as to whether any Servicing
Advance previously made with respect to a Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to conclusively rely on such a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made (or such shorter period as may be required to avoid
foreclosure of liens for delinquent real estate taxes or a lapse in insurance
coverage), the Trustee shall, if a Responsible Officer of the Trustee has actual
knowledge of such failure on the part of the Master Servicer, give written
notice of such failure to the Master Servicer. If such Servicing Advance is not
made by the Master Servicer within 3 Business Days after such notice then
(subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee shall make such Servicing Advance.
Any failure by the Master Servicer to make a Servicing Advance hereunder shall
constitute an Event of Default by the Master Servicer subject to and as provided
in Section 7.01.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), each of the Master Servicer
and the Trustee shall be entitled to receive, out of any amounts then on deposit
in the Certificate Account, any unpaid interest at the Reimbursement Rate in
effect from time to time, compounded annually, accrued on the amount of such
Servicing Advance (to the extent made with its own funds) from the date made to
but not including the date of reimbursement such interest to be payable, subject
to the terms of the related Intercreditor Agreement with respect to a Loan Pair,
first out of late payment charges and Penalty Interest received on the related
Mortgage Loan or REO Property during the Collection Period in which such
reimbursement is made, and to the extent that such late payment charges and
Penalty Interest are insufficient, but only after or at the same time the
related Advance has been or is reimbursed pursuant to this Agreement, then from
general collections on the Mortgage Loans then on deposit in the Certificate
Account. The Master Servicer shall reimburse itself or the Trustee, as
applicable, for any outstanding Servicing Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 3.03(d) on any Servicing Advance as to which the corresponding Escrow
Payment or other similar payment by the Mortgagor was received by the Master
Servicer on or prior to the date the related Servicing Advance was made.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer or the Trustee make any Servicing Advances with respect to any
Companion Loan after the related Co-Lender Loan has been paid in full.
(e) The determination by the Master Servicer or the Special Servicer
that the Master Servicer has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made in accordance with the Servicing Standard and shall be
evidenced by an Officer's Certificate delivered promptly to the Trustee and the
Depositor, setting forth the basis for such determination, together with a copy
of any Appraisal (the cost of which may be paid out of the Certificate Account
pursuant to Section 3.05(a)) of the related Mortgaged Property or REO Property,
as the case may be; which Appraisal shall be conducted pursuant to Section
3.09(a) by the Master Servicer, or by or on behalf of the Special Servicer if
the Mortgage Loan is a Specially Serviced Mortgage Loan or, if no such Appraisal
has been performed, a copy of an Appraisal of the related Mortgaged Property or
REO Property, performed within the twelve months preceding such determination
and the party delivering such appraisal has no actual knowledge of a material
adverse change in the condition of the related Mortgaged Property that would
draw into question the applicability of such Appraisal, by an Independent
Appraiser or other expert in real estate matters, and further accompanied by
related Mortgagor operating statements and financial statements, budgets and
rent rolls of the related Mortgaged Property and any engineers' reports,
environmental surveys or similar reports that the Master Servicer or the Special
Servicer may have obtained and that support such determination. The Master
Servicer shall be entitled to rely, conclusively, on any determination by the
Special Servicer that a Servicing Advance, if made, would be a Nonrecoverable
Advance. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, if the
Master Servicer has failed to make a Servicing Advance for reasons other than a
determination by the Master Servicer or the Special Servicer that such Servicing
Advance would be a Nonrecoverable Advance, the Trustee shall make such Servicing
Advance within the time periods required by Section 3.03(c) unless the Trustee
in good faith, makes a determination that such Servicing Advance would be a
Nonrecoverable Advance.
(f) The Master Servicer shall, as to all Mortgage Loans (other than
the Non-Serviced Mortgage Loans) and Companion Loans (other than the
Non-Serviced Companion Loans), establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), into which all Reserve Funds, if any,
shall be deposited and retained. Withdrawals of amounts so deposited may be made
(i) to pay for, or to reimburse the related Mortgagor in connection with, the
related environmental remediation, repairs and/or capital improvements at the
related Mortgaged Property if the repairs and/or capital improvements have been
completed, and such withdrawals are made in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds and any other items for
which such Reserve Funds were intended pursuant to the related Mortgage Loan
documents and (ii) to pay the Master Servicer interest and investment income
earned on amounts in the Reserve Accounts as described below if permitted under
the related Mortgage Loan documents. To the extent permitted in the applicable
Mortgage, funds in the Reserve Accounts to the extent invested may be only
invested in Permitted Investments in accordance with the provisions of Section
3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve Accounts
shall not be considered part of the segregated pool of assets comprising REMIC
I, REMIC II or the Grantor Trusts. Consistent with the Servicing Standard, the
Master Servicer may waive or extend the date set forth in any agreement
governing such Reserve Funds by which the required repairs and/or capital
improvements at the related Mortgaged Property must be completed.
Section 3.04. Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest Account, Distribution Account
and Companion Distribution Account, Swap Collateral Account, Class A-4M Trust
Account, Class A-MM Trust Account and Floating Rate Accounts.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders and, to the extent
funds on deposit in the Certificate Account are allocable to the related
Companion Loans (other than the Non-Serviced Companion Loans), the related
Companion Holders, but solely to the extent set forth in the related
Intercreditor Agreement and subject to any provisions relating to subordination
of rights with respect to the Co-Lender Loans. The Certificate Account shall be
an Eligible Account. The Master Servicer shall deposit or cause to be deposited
in the Certificate Account, within 1 Business Day of receipt of available funds
(in the case of payments by Mortgagors or other collections on the Mortgage
Loans or the Companion Loans) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-Off Date (other than in respect of principal and
interest on the Mortgage Loans or the Companion Loans (other than the
Non-Serviced Companion Loans) due and payable on or before the Cut-Off Date,
which payments shall be delivered promptly to the applicable Mortgage Loan
Seller or its designee, with negotiable instruments endorsed as necessary and
appropriate without recourse), other than amounts received from Mortgagors which
are to be used to purchase 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 of the Mortgage Loans or
Companion Loans (other than the Non-Serviced Companion Loans), including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans (other than the Non-Serviced Companion Loans), including
Additional Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan or Companion Loan
(other than the Non-Serviced Companion Loans) (including, without
limitation, any amounts representing recoveries of Nonrecoverable Advances
or Unliquidated Advances, including interest on such Nonrecoverable
Advances or Unliquidated Advances in respect of the related Mortgage
Loans);
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06(b) in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c) and any amounts received from a Mortgage Loan
Seller with respect to a Special Reserve Account pursuant to Section
2.02(d);
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls;
(x) any amount required to be deposited by the Master Servicer
pursuant to Section 3.03(d) and 4.03(d) in connection with reimbursing the
Trust Fund for interest paid on a P&I Advance or Servicing Advance, as
applicable;
(xi) any amount paid by a Mortgagor to cover items for which a
Servicing Advance has been previously made and for which the Master
Servicer, the Special Servicer or the Trustee, as applicable, has been
previously reimbursed out of the Certificate Account;
(xii) any amount required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.11(b) and 3.11(d),
respectively, in connection with reimbursing the Trust Fund for Additional
Trust Fund Expenses; and
(xiii) all amounts remitted or advanced by the related Non-Serviced
Master Servicer, pursuant to the related Non-Serviced Pooling and
Servicing Agreement and the related Intercreditor Agreement.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and 3.11(d), need not be deposited by the Master Servicer in the
Certificate Account. If the Master Servicer shall deposit in the Certificate
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Certificate Account, any provision herein to the
contrary notwithstanding. The Master Servicer shall promptly deliver to the
Special Servicer as additional servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances as provided in Sections 3.03(d) or 4.03(d) or Additional
Trust Fund Expenses as provided in Section 3.11(d)) and other transaction fees
or other expenses received by the Master Servicer to which the Special Servicer
is entitled pursuant to either of such Sections upon receipt of a certificate of
a Servicing Officer of the Special Servicer describing the item and amount. The
Certificate Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series and the other accounts of the Master Servicer.
The Master Servicer may maintain, as part of the Certificate
Account, a subaccount for each Companion Loan (other than the Non-Serviced
Companion Loans) on behalf of and in trust for the benefit of the related
Companion Holder, into which subaccount the Master Servicer shall deposit or
cause to be deposited all amounts described in the first paragraph of this
Section 3.04(a) to the extent allocable to the related Companion Loan in
accordance with this Agreement and the related Intercreditor Agreement, and out
of which subaccount the Master Servicer may make withdrawals to the extent
withdrawals of such funds are provided for in Section 3.05(a) of this Agreement
or in the related Intercreditor Agreement. Each such subaccount shall be an
Eligible Account or a subaccount of an Eligible Account and shall be entitled
"Wachovia Bank, National Association, as Master Servicer, on behalf of and in
trust for the related Companion Holder."
Upon receipt of any of the amounts described in clauses (i) through
(iv), (xi), (xii) and (xiii) above with respect to any Mortgage Loan or
Companion Loan, the Special Servicer shall promptly, but in no event later than
one Business Day after receipt of available funds, remit such amounts (net of
any reimbursable expenses incurred by the Special Servicer) to or at the
direction of the Master Servicer for deposit into the Certificate Account in
accordance with the second preceding paragraph, unless the Special Servicer
determines, consistent with the Servicing Standard, that a particular item
should not be deposited because of a restrictive endorsement. Any such amounts
received by the Special Servicer with respect to an REO Property shall be
deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer and shall deliver promptly, but in no event later than three
Business Days after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the office of the Trustee
to be held in trust for the benefit of the Certificateholders (other than the
Class Z Certificateholders). The Distribution Account shall be an Eligible
Account. The Trustee hereby authorizes the Paying Agent to make deposits in and
withdrawals from the Distribution Account in accordance with the terms of this
Agreement. The Master Servicer shall deliver to the Paying Agent each month on
or before 1:30 p.m. New York City time on the P&I Advance Date therein, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to that portion of the Available Distribution Amount
(calculated without regard to clauses (a)(ii), (a)(v) and (b)(ii)(B) of the
definition thereof) for the related Distribution Date then on deposit in the
Certificate Account, together with (i) any Prepayment Premiums and/or Yield
Maintenance Charges received on the Mortgage Loans during the related Collection
Period, and (ii) in the case of the final Distribution Date, any additional
amounts contemplated by the third paragraph of Section 9.01.
The Companion Paying Agent shall establish and maintain one or more
trust accounts for distributions to the Companion Loans (other than the
Non-Serviced Companion Loans) (collectively, the "Companion Distribution
Account") to be held on behalf of the related Companion Holder(s). The Companion
Distribution Account shall be an Eligible Account and may be a subaccount of the
Certificate Account. The Master Servicer hereby authorizes the Companion Paying
Agent to make deposits in and withdrawals from the Companion Distribution
Account in accordance with the terms of this Agreement. Unless the Companion
Distribution Account is the related subaccount or subaccounts of the Certificate
Account as allowed by the last sentence of the definition of Companion
Distribution Account, the Master Servicer shall deliver to the Companion Paying
Agent each month on or before 2:00 p.m. New York City time on the P&I Advance
Date therein for deposit in the Companion Distribution Account, an aggregate
amount of immediately available funds equal to the amount available to be
distributed to the related Companion Holder(s) pursuant to the related
Intercreditor Agreement.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties,
pursuant to Section 9.01, exclusive of the portion of such amounts
required to be deposited in the Certificate Account pursuant to Section
9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), held in trust for the benefit of
the Certificateholders. The Interest Reserve Account shall be an Eligible
Account. On or before each Distribution Date in February and, during each year
that is not a leap year, January (unless, in each case, the related Distribution
Date is the final Distribution Date), the Master Servicer shall withdraw from
the Certificate Account and remit to the Trustee for deposit in the Interest
Reserve Account, with respect to each Interest Reserve Loan, an amount equal to
the Interest Reserve Amount in respect of such Interest Reserve Loan, for such
Distribution Date (such withdrawal from the Certificate Account to be made out
of general collections on the Mortgage Pool where any related P&I Advance was
deposited in the Distribution Account).
(d) Prior to any Collection Period during which Additional Interest
is received, and upon notification from the Master Servicer or Special Servicer
pursuant to Section 3.02(d), the Trustee (on behalf of the Certificateholders)
shall establish and maintain the Additional Interest Account in the name of the
Trustee in trust for the benefit of the Class Z Certificateholders. The
Additional Interest Account shall be established and maintained as an Eligible
Account. Prior to the applicable Distribution Date, the Master Servicer shall
remit to the Trustee for deposit in the Additional Interest Account an amount
equal to the Additional Interest received during the applicable Collection
Period.
Following the distribution of Additional Interest to the Class Z
Certificateholders, on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Additional Interest, the Trustee shall terminate the Additional Interest
Account.
(e) The Paying Agent, on behalf of the Trustee for the benefit of
the Certificateholders, shall establish (upon notice from Special Servicer of an
event occurring that generates Gain-on-Sale Proceeds) and maintain the
Gain-on-Sale Reserve Account in the name of the Paying Agent on behalf of the
Trustee for the benefit of the Certificateholders. The Gain-on-Sale Reserve
Account shall be maintained as a segregated account, separate and apart from
trust funds for mortgage pass-through certificates of other series administered
by the Paying Agent and other accounts of the Paying Agent. Upon the disposition
of any REO Property in accordance with Section 3.09 or Section 3.18, the Special
Servicer will calculate the Gain-on-Sale Proceeds, if any, realized in
connection with such sale and remit such funds to the Paying Agent for deposit
into the Gain-on-Sale Reserve Account.
(f) On or before the Closing Date, the Paying Agent shall establish
and maintain the Floating Rate Accounts in trust for the benefit of the Class
A-4FL, Class A-4FL Component, Class A-MFL and Class A-MFL Component
Certificateholders and the related Swap Counterparty. Each Floating Rate Account
shall (i) at all times be an Eligible Account and (ii) relate solely to the
Class A-4FL Certificates or Class A-MFL Certificates, as applicable, and amounts
payable in respect of the related Swap Contract. The Paying Agent shall deposit
into the respective Floating Rate Account all amounts received in respect of
distributions on the Class A-4FL Regular Interest or Class A-MFL Regular
Interest, as applicable, as specified in Section 4.01, and shall immediately
deposit into the respective Floating Rate Account all amounts received under the
related Swap Contract.
(g) On or before the Closing Date, the Trustee shall establish a
single, segregated non-interest bearing trust account in the name of the
Trustee, which shall be designated as the "Swap Collateral Account" (with
separate sub-accounts for each Swap Counterparty) to be held in trust for the
benefit of the Class A-4FL, Class A-4FL Component, Class A-MFL and Class A-MFL
Component Certificateholders and each Swap Counterparty, over which the Trustee
shall have exclusive control and the sole right of withdrawal, and in which no
Person other than the Trustee, the Class A-4FL, Class A-4FL Component, Class
A-MFL and Class A-MFL Component Certificateholders and each Swap Counterparty
shall have any legal or beneficial interest. The Trustee shall deposit all
collateral received from each Swap Counterparty under the related Swap Contract
in the Swap Collateral Account. Any and all funds at any time on deposit in, or
otherwise to the credit of, the Swap Collateral Account shall be held in trust
by the Trustee for the respective benefit of the Class A-4FL and Class A-4FL
Component Certificateholders and the Class A-MFL and Class A-MFL Component
Certificateholders and the related Swap Counterparty. The only permitted
withdrawal from or application of funds on deposit in, or otherwise to the
credit of, the Swap Collateral Account shall be (i) for application to
obligations of the applicable Swap Counterparty to the Trust under the related
Swap Contract in accordance with the terms of such Swap Contract or (ii) to
return collateral, including any interest amounts, to the Swap Counterparty when
and as required by the related Swap Contract. The Swap Collateral Account shall
be beneficially owned by the Swap Counterparty and shall not be an asset of the
Trust Fund, the Trust REMICs, the Grantor Trusts, the Class A-4M Trust or the
Class A-MM Trust.
(h) Funds in the Certificate Account, the Interest Reserve Account,
the Distribution Account, the Floating Rate Accounts, the Class A-4M Trust
Account, the Class A-MM Trust Account, the Class A-4M Funding Account, the Class
A-MM Funding Account, the Additional Interest Account, the Interest Shortfall
Account and the Gain-on-Sale Reserve Account may be invested only in Permitted
Investments in accordance with the provisions of Section 3.06. Funds on deposit
in the Gain-on-Sale Reserve Account shall be invested pursuant to Section 3.06.
The Master Servicer shall give written notice to the Trustee, the Special
Servicer and the Rating Agencies of the location of the Certificate Account as
of the Closing Date and of the new location of the Certificate Account prior to
any change thereof. The Paying Agent shall give written notice to the Trustee,
the Master Servicer, the Special Servicer and the Rating Agencies of any new
location of the Distribution Account prior to any change thereof.
(i) On or before the Closing Date, the Trustee shall establish and
maintain one or more accounts (collectively, the "Interest Shortfall Account"),
held on behalf of the Trustee in trust for the benefit of the
Certificateholders. On the Closing Date, the Depositor shall deposit or cause to
be deposited the Interest Shortfall Amount.
(j) The Trustee shall establish and maintain one or more accounts
(collectively, the "Class A-4M Trust Account"), held in trust for the benefit of
the holders of the Class A-4M Component Certificates. The Class A-4M Trust
Account shall be an Eligible Account. On each Distribution Date, the Trustee
shall withdraw from the Distribution Account and deposit in the Class A-4M Trust
Account, all amounts allocable to the Class A-4M Trust pursuant to Section
4.01(p) hereof.
(k) The Trustee shall establish and maintain one or more accounts
(collectively, the "Class A-MM Trust Account"), held in trust for the benefit of
the holders of the Class A-MM Component Certificates. The Class A-MM Trust
Account shall be an Eligible Account. On each Distribution Date, the Trustee
shall withdraw from the Distribution Account and deposit in the Class A-MM Trust
Account, all amounts allocable to the Class A-MM Trust pursuant to Section
4.01(r) hereof.
(l) The Trustee shall establish and maintain one or more accounts
(collectively, the "Class A-4M Funding Account"). The Class A-4M Funding Account
shall be an Eligible Account. On each Mandatory Tender Date, the Trustee shall
take all commercially reasonable efforts to cause the Placement Agents to
deposit or cause the Prospective Purchasers to deposit, in accordance with the
Class A-4M Put Agreement, a payment for any remarketed Class A-4M Certificates
or any Discount Shortfall Amount, as applicable, to the Class A-4M Funding
Account.
(m) The Trustee shall establish and maintain one or more accounts
(collectively, the "Class A-MM Funding Account"). The Class A-MM Funding Account
shall be an Eligible Account. On each Mandatory Tender Date, the Trustee shall
take all commercially reasonable efforts to cause the Placement Agents to
deposit or cause the Prospective Purchasers to deposit, in accordance with the
Class A-MM Put Agreement, a payment for any remarketed Class A-MM Certificates
or any Discount Shortfall Amount, as applicable, to the Class A-MM Funding
Account.
Section 3.05. Permitted Withdrawals from the Certificate Account,
Distribution Account, Interest Reserve Account, Additional Interest Account,
Gain-on-Sale Reserve Account, Companion Distribution Account, Floating Rate
Accounts, Interest Shortfall Account, Class A-4M Trust Account and Class A-MM
Trust Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) (A) to remit to the Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b) and any amount that may be applied to make
P&I Advances pursuant to Section 4.03(a); and (B) to deposit in and remit
to the Companion Paying Agent for deposit in each Companion Distribution
Account the amounts required to be so deposited pursuant to the third
paragraph of Section 3.04(b) and any amount relating to a Companion Loan
(other than the Non-Serviced Companion Loans) that may be applied to make
P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances (the Trustee's and Master Servicer's right to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts that are reimbursed pursuant to clause (vii) below) being limited
to amounts that represent Late Collections of interest (net of the related
Servicing Fees) and principal (net of any related Workout Fee or
Liquidation Fee) received in respect of the particular Mortgage Loan, REO
Loan or Companion Loan as to which such P&I Advance was made);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as a
recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees or Liquidation Fees in
respect of each Specially Serviced Mortgage Loan, Corrected Mortgage Loan,
and REO Loan, the Special Servicer's (or, if applicable, any predecessor
Special Servicer's) right to payment pursuant to this clause (v) with
respect to any such Mortgage Loan or REO Loan being limited to amounts
received on or in respect of such Specially Serviced Mortgage Loan or
Corrected Mortgage Loan (whether in the form of payments or Liquidation
Proceeds) or such REO Loan (whether in the form of REO Revenues or
Liquidation Proceeds) that are allocable as a recovery of principal or
interest thereon (provided that no Liquidation Fee shall be payable out of
(i) Insurance Proceeds and (ii) any Liquidation Proceeds received in
connection with the purchase of any Mortgage Loan or REO Property by a
Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement (if purchased within the required time period set forth in such
Mortgage Loan Purchase Agreement), by the Special Servicer, the Companion
Holder or the Majority Subordinate Certificateholder, as described in
Section 3.18(c), Section 3.18(d), Section 3.18(e) or Section 3.18(h), or
by any mezzanine lender pursuant to the terms of the related mezzanine
intercreditor agreement, or by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder or the purchasing
Certificateholder pursuant to Section 9.01);
(vi) to reimburse the Trustee, itself or the Special Servicer, in
that order, for any unreimbursed Servicing Advances, the Trustee's, the
Master Servicer's and the Special Servicer's respective rights to
reimbursement pursuant to this clause (vi) with respect to any Servicing
Advance (other than Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts that are reimbursed pursuant to clause (vii) below)
being limited to payments made by the related Mortgagor that are allocable
to such Servicing Advance, or to Liquidation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues received in respect of the particular
Mortgage Loan, Companion Loan or REO Property as to which such Servicing
Advance was made (provided that in case of such reimbursement relating to
any Co-Lender Loan, such reimbursements shall be made first, from amounts
collected on the related Subordinate Companion Loan and then from the
related Co-Lender Loan (and Pari Passu Companion Loan, if any) in
accordance with the terms of the related Intercreditor Agreement);
(vii) to reimburse the Trustee, itself or the Special Servicer, in
that order, (A) for any unreimbursed Advances (including interest at the
Reimbursement Rate) that have been or are determined to be Nonrecoverable
Advances and for any Workout-Delayed Reimbursement Amounts, in that order,
and (B) to pay itself, with respect to any Mortgage Loan (including, if
applicable, the Non-Serviced Mortgage Loans), Companion Loan or any REO
Property, any related earned Master Servicing Fee that remained unpaid in
accordance with clause (iii) above, in the case of clause (B), following a
Final Recovery Determination made with respect to such Mortgage Loan,
Companion Loan or REO Property and the deposit into the Certificate
Account of all amounts received in connection therewith; provided,
however, any reimbursement of Nonrecoverable Advances or Workout Delayed
Reimbursement Amounts payable pursuant to this clause (vii), with respect
to Nonrecoverable Advances shall be deemed to be recovered, first, from
collections or receipts on the Mortgage Loans and REO Properties in
respect of principal and then in respect of interest and other
collections, and, with respect to Workout Delayed Reimbursement Amounts,
only out of collections and receipts on the Mortgage Loans and REO
Properties in respect of principal;
(viii) to reimburse the related Non-Serviced Trustee, Non-Serviced
Master Servicer or the related Non-Serviced Special Servicer for
unreimbursed advances (including interest on such advances) made by such
party pursuant to the related Non-Serviced Pooling and Servicing
Agreement, in respect of any Non-Serviced Serviced Mortgage Loan, that
have been or are determined to be nonrecoverable advances and for any
workout-delayed reimbursement amounts, in that order, pursuant to the
terms of the related Non-Serviced Pooling and Servicing Agreement (up to,
with respect to a servicing advance, a Non-Serviced Mortgage Loan's pro
rata share of such advance, or if the amount of such pro rata share,
together with amounts available from collections in the certificate
account created under the related Non-Serviced Pooling and Servicing
Agreement is insufficient to reimburse the party that made such advance,
then up to the full amount of such advance made on the Non-Serviced
Mortgage Loans and interest thereon); provided, however, any reimbursement
of Nonrecoverable Advances or Workout Delayed Reimbursement Amounts
payable pursuant to this clause (viii), with respect to Nonrecoverable
Advances, shall be deemed to be recovered, first, from collections or
receipts on the Mortgage Loans and REO Properties in respect of principal
and then in respect of interest and other collections, and, with respect
to Workout Delayed Reimbursement Amounts, only out of collections and
receipts on the Mortgage Loans and REO Properties in respect of principal;
(ix) at such time as it reimburses the Trustee, itself, the Special
Servicer, the related Non-Serviced Trustee, Non-Serviced Master Servicer
or the related Non-Serviced Special Servicer, in that order, for any
unreimbursed Advance (including any Advance that constitutes a
Workout-Delayed Reimbursement Amount) pursuant to clause (ii), (vi), (vii)
or (viii) above, to pay the Trustee, itself, the Special Servicer, the
related Non-Serviced Trustee, Non-Serviced Master Servicer or the related
Non-Serviced Special Servicer, as the case may be, in that order, any
interest accrued and payable thereon in accordance with Section 3.03(d) or
4.03(d) or, with respect to the Non-Serviced Mortgage Loans, pursuant to
the related Non-Serviced Pooling and Servicing Agreement, as applicable;
provided that the Trustee's, the Master Servicer's, the Special
Servicer's, the related Non-Serviced Trustee's, Non-Serviced Master
Servicer's and the related Non-Serviced Special Servicer's rights to
payment pursuant to this clause (ix) with respect to interest on any
Advance shall be satisfied (A) subject to and in accordance with the terms
of the Intercreditor Agreement with respect to the related Loan Pair,
first out of late payment charges and Penalty Interest collected on or in
respect of the related Mortgage Loan and REO Loan, during the Collection
Period in which such Advance is reimbursed (the use of such late payment
charges and Penalty Interest to be allocated between the Master Servicer
and the Special Servicer on a pro rata basis based on the amount of late
payment charges and Penalty Interest that the Master Servicer and the
Special Servicer have received as additional servicing compensation during
such period), and (B) to the extent that the late payment charges and
Penalty Interest described in the immediately preceding clause (A) are
insufficient, but only at the same time or after such Advance has been
reimbursed, out of general collections on the Mortgage Loans, Companion
Loans and any REO Properties on deposit in the Certificate Account;
(x) to pay for costs and expenses incurred by the Trust Fund
pursuant to the first sentence of Section 3.12(a) or, pursuant to Section
3.12, as to any Mortgage Loan that is a Specially Serviced Mortgage Loan;
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts 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 Collection Period; (B) any
Prepayment Interest Excesses, and (C) Penalty Interest and late payment
charges on Mortgage Loans that are not Specially Serviced Mortgage Loans
(to the extent such Penalty Interest and/or late payment charges were not
applied to offset interest on Advances pursuant to Section 3.05(a)(ix)(A)
or Additional Trust Fund Expenses pursuant to Section 3.11(b) or
inspection expenses pursuant to Section 3.12(a));
(xii) to pay to the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(d) (to the extent such
Penalty Interest and/or late payment charges were not applied to offset
interest on Advances pursuant to clause (ix)(A) of this Section or
Additional Trust Fund Expenses pursuant to Section 3.11(d) or inspection
expenses pursuant to Section 3.12(a));
(xiii) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18(b), 4.03(c) or 9.01;
(xiv) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03;
(xv) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C)
the cost of an Opinion of Counsel contemplated by Section 11.01(a) or
11.01(c) in connection with any amendment to this Agreement requested by
the Master Servicer or the Special Servicer that protects or is in
furtherance of the rights and interests of Certificateholders, and (D) the
cost of recording this Agreement in accordance with Section 11.02(a);
(xvi) to pay itself, the Special Servicer, any of the Mortgage Loan
Sellers, the Majority Subordinate Certificateholder, a Companion Holder, a
mezzanine lender or any other Person, as the case may be, with respect to
each Mortgage Loan, if any, previously purchased by such Person pursuant
to this Agreement, all amounts received thereon subsequent to the date of
purchase;
(xvii) to withdraw any Interest Reserve Amount and remit such
Interest Reserve Amount to the Trustee for deposit into the Interest
Reserve Account pursuant to Section 3.04(c);
(xviii) to remit to the Trustee for deposit into the Additional
Interest Account the amounts required to be deposited pursuant to Section
3.04(d);
(xix) to remit to the Paying Agent for deposit into the Distribution
Account the amounts required to be deposited pursuant to Section 3.04(b);
(xx) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b);
(xxi) to pay the cost of any Environmental Assessment or any
remedial, corrective or other action pursuant to Section 3.09(c);
(xxii) to withdraw any amounts deposited in error;
(xxiii) to withdraw any other amounts that this Agreement expressly
provides may be withdrawn from the Certificate Account; and
(xxiv) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Certificate Account pursuant to clauses (ii)-(xxiv) above.
Upon request, the Master Servicer shall provide to the Trustee such records and
any other information in the possession of the Master Servicer to enable the
Trustee to determine the amounts attributable to REMIC I (with respect to the
Mortgage Loans) and the Companion Loans. The Master Servicer shall, to the
extent permitted by the terms of the related Intercreditor Agreement, make
claims for reimbursement from the related Companion Holder in connection with
related Servicing Advances and interest thereon and other related expenses so as
to minimize the total amount of withdrawals on the Certificate Account for such
items. Nothing in the foregoing sentence shall limit the Master Servicer's
rights to be reimbursed for claims relating to the Companion Loans that are
reimbursable claims pursuant to the terms of this Agreement. Notwithstanding
anything in this Section 3.05(a) to the contrary, in no event shall the Master
Servicer withdraw from funds on deposit in the Certificate Account any amount to
be applied to, or to provide reimbursement for, any amounts referenced in this
Section 3.05(a) (other than amounts referenced in clause (xx)) which relate to
any Companion Loan to the extent the related Co-Lender Loan has been paid in
full in a prior Collection Period. For the avoidance of doubt, in no event shall
the Master Servicer withdraw from funds on deposit in the Certificate Account
any amounts allocable to the Beacon D.C. & Seattle Pool Pari Passu Companion
Loan and the DDR Southeast Pool Pari Passu Companion Loan (other than Penalty
Interest and late payment charges) to be applied to, or to provide reimbursement
for, any costs, expenses, indemnities, losses or liabilities relating or
allocable to any Mortgage Loan or Companion Loan other than the Beacon D.C. &
Seattle Pool Pari Passu Companion Loan, the Non-Serviced Mortgage Loans and the
DDR Southeast Pool Pari Passu Companion Loans or the DDR Southeast Pool Serviced
Mortgage Loan.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Certificate Account amounts permitted to be paid to the Special Servicer (or
to such third party contractors) or the Trustee therefrom promptly upon receipt
of a certificate of a Servicing Officer of the Special Servicer or of a
Responsible Officer of the Trustee, describing the item and amount to which the
Special Servicer (or such third party contractors) or the Trustee is entitled.
The Master Servicer may rely conclusively on any such certificate and shall have
no duty to re-calculate the amounts stated therein. With respect to any
reimbursement to be made hereunder to the related Non-Serviced Master Servicer
or the related Non-Serviced Special Servicer in respect of any Servicing Advance
(as defined in the related Non-Serviced Pooling and Servicing Agreement) made by
such parties subsequently determined to be a nonrecoverable advance pursuant to
the terms of the related Non-Serviced Pooling and Servicing Agreement, the
Master Servicer may conclusively rely on a written statement from such party
delivered to the Master Servicer that such Advance (as defined in the related
Non-Serviced Pooling and Servicing Agreement) is a nonrecoverable advance under
the terms of the related Non-Serviced Pooling and Servicing Agreement. The
Special Servicer shall keep and maintain separate accounting for each Specially
Serviced Mortgage Loan and REO Property, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account. With respect to each Mortgage Loan or
Companion Loan for which it makes an Advance, the Trustee shall similarly keep
and maintain separate accounting for each Mortgage Loan or Companion Loan, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account for reimbursements of
Advances or interest thereon.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, instead of obtaining reimbursement out of general
collections immediately, the Master 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 Master Servicer or the Trustee, as applicable, and the
Controlling Class Representative, each in its sole discretion) and the
unreimbursed portion of such Advance will accrue interest at the Prime Rate. At
any time after such a determination to obtain reimbursement over time, the
Master Servicer, the Special Servicer or the Trustee, as applicable, may, in its
sole discretion and subject to the immediately following paragraph, decide to
obtain reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer, constitute a violation of the Servicing Standard and/or
with respect to the Trustee, constitute a violation of any fiduciary duty to
Certificateholders or contractual duty hereunder.
The Master Servicer or the Trustee, as applicable, shall give
Moody's and S&P at least 15 days notice prior to any reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account allocable to
interest on the Mortgage Loans unless (1) the Master Servicer or the Trustee, as
applicable, determines in its sole discretion that waiting 15 days after such a
notice could jeopardize the Master Servicer's or the Trustee's ability, as
applicable, to recover such Nonrecoverable Advances, (2) changed circumstances
or new or different information becomes known to the Master Servicer or the
Trustee, as applicable, that could affect or cause a determination of whether
any Advance is a Nonrecoverable Advance, whether to defer reimbursement of a
Nonrecoverable Advance or the determination in clause (1) above, or (3) the
Master Servicer has not timely received from the Trustee information requested
by the Master Servicer to consider in determining whether to defer reimbursement
of a Nonrecoverable Advance; provided that if clause (1), (2) or (3) applies,
the Master Servicer or the Trustee, as applicable, shall give Moody's and S&P
notice of an anticipated reimbursement to it of Nonrecoverable Advances from
amounts in the Certificate Account or Distribution Account, as applicable,
allocable to interest on the Mortgage Loans as soon as reasonably practicable in
such circumstances. The Master Servicer and the Trustee, as applicable, shall
have no liability for any loss, liability or expense resulting from any notice
provided to Moody's and S&P contemplated by the immediately preceding sentence.
If the Master Servicer or the Trustee, as applicable, is reimbursed
out of general collections for any unreimbursed Advances that are determined to
be Nonrecoverable Advances (together with any interest accrued and payable
thereon), then (for purposes of calculating distributions on the Certificates)
such reimbursement and payment of interest shall be deemed to have been made:
first, out of the Principal Distribution Amount, which, but for its application
to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be
included in the Available Distribution Amount, for any subsequent Distribution
Date, and second, out of other amounts which, but for their application to
reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be
included in the Available Distribution Amount for any subsequent Distribution
Date. If and to the extent that any payment is deemed to be applied in
accordance with clause first above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated by clause first of the
immediately preceding sentence and (iii) the particular item for which such
Advance was originally made is subsequently collected out of payments or other
collections in respect of the related Mortgage Loan, then the Principal
Distribution Amount for the Distribution Date that corresponds to the Collection
Period in which such item was recovered shall be increased by an amount equal to
the lesser of (A) the amount of such item and (B) any previous reduction in the
Principal Distribution Amount for a prior Distribution Date pursuant to clause
first above resulting from the reimbursement of the subject Advance and/or the
payment of interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make deemed distributions to itself as holder of the REMIC I
Regular Interests, to make deemed distributions to the Class A-4FL
Floating Rate Account and the Class A-MFL Floating Rate Account with
respect to the Class A-4FL Regular Interest and Class A-MFL Regular
Interest, respectively, to make deemed distributions to the Class A-4M
Trust Account and the Class A-MM Trust Account with respect to the Class
A-4FL Grantor Trust Interest and Class A-MFL Grantor Trust Interest,
respectively, and to make distributions to Certificateholders on each
Distribution Date, pursuant to Sections 4.01 and 9.01, as applicable;
(ii) to pay the Trustee 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 Section 8.05;
(iii) to pay the Trustee the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to each Mortgage Loan and REO Loan and to pay
the Trustee, as additional compensation, interest and investment income,
if any, earned in respect of amounts held in the Distribution Account as
provided in Section 3.06, but only to the extent of the Net Investment
Earnings with respect to such account for the related Distribution Date;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Section 3.20(d), 9.02(a) and
10.01(h), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders; provided that a portion of such costs shall be
allocated pursuant to the related Non-Serviced Pooling and Servicing
Agreement and the related Intercreditor Agreement if such costs relate to
a Non-Serviced Mortgage Loan;
(v) to pay any and all federal, state and local taxes imposed on
REMIC I or REMIC II or on the assets or transactions of either such REMIC,
together with all incidental costs and expenses, to the extent none of the
Trustee, the REMIC Administrator, the Master Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(i); provided that a
portion of such amounts shall be allocated pursuant to the related
Non-Serviced Pooling and Servicing Agreement and the related Intercreditor
Agreement if such costs relate to a Non-Serviced Mortgage Loan;
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e); provided that a portion of such amounts
shall be allocated pursuant to the related Non-Serviced Pooling and
Servicing Agreement and the related Intercreditor Agreement if such costs
relate to a Non-Serviced Mortgage Loan;
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
Taxes imposed on REMIC I or REMIC II shall be allocated to the
related REMIC.
(c) The Paying Agent may, from time to time, make withdrawals from
the Class A-MFL Floating Rate Account for any of the following purposes (in no
particular order of priority):
(i) to make distributions to the Class A-MM Trust Account and to the
holders of the Class A-MFL Certificates in accordance with Section 4.01(r)
hereof;
(ii) out of interest amounts to make regularly scheduled payments of
interest required to be paid to the Swap Counterparty under the Class
A-MFL Swap Contract as specified in Section 3.30(c), provided there is no
Swap Default;
(iii) to pay to the Paying Agent any amounts deposited by the Paying
Agent in the Class A-MFL Floating Rate Account not required to be
deposited therein; and
(iv) to clear and terminate the Class A-MFL Floating Rate Account at
the termination of this Agreement pursuant to Section 9.01.
(d) The Paying Agent may, from time to time, make withdrawals from
the Class A-4FL Floating Rate Account for any of the following purposes (in no
particular order of priority):
(i) to make distributions to the Class A-4M Trust Account and to the
holders of the Class A-4FL Certificates in accordance with Section 4.01(p)
hereof;
(ii) out of interest amounts to make regularly scheduled payments of
interest required to be paid to the Swap Counterparty under the Class
A-4FL Swap Contract as specified in Section 3.30(c), provided there is no
Swap Default;
(iii) to pay to the Paying Agent any amounts deposited by the Paying
Agent in the Class A-4FL Floating Rate Account not required to be
deposited therein; and
(iv) to clear and terminate the Class A-4FL Floating Rate Account at
the termination of this Agreement pursuant to Section 9.01.
(e) The Paying Agent may, from time to time, make withdrawals from
the Class A-MM Trust Account for any of the following purposes (in no particular
order of priority):
(i) to pay to the Trustee the Class A-MM Additional Trustee Fee;
(ii) to pay the Class A-MM Put Premium to the Class A-MM Liquidity
Provider, pursuant to the terms of the Class A-MM Put Agreement so long as
no Liquidity Termination Event has occurred that has caused the Class A-MM
Put Agreement to terminate;
(iii) to pay to the Placement Agents or the Class A-MM Liquidity
Provider in accordance with the Class A-MM Put Agreement, as applicable,
the Class A-MM Placement Fee so long as no Liquidity Termination Event has
occurred that has caused the Class A-MM Put Agreement to terminate;
(iv) to make distributions to the Holders of the Class A-MM
Certificates and Class A-MMS Certificates in accordance with Section
4.01(s) hereof;
(v) to pay to the Paying Agent any amounts deposited by the Paying
Agent in the Class A-MM Trust Account not required to be deposited
therein; and
(vi) to clear and terminate the Class A-MM Trust Account at the
termination of this Agreement pursuant to Section 9.01.
(f) The Paying Agent may, from time to time, make withdrawals from
the Class A-4M Trust Account for any of the following purposes (in no particular
order of priority):
(i) to pay to the Trustee the Class A-4M Additional Trustee Fee;
(ii) to pay the Class A-4M Put Premium to the Class A-4M Liquidity
Provider, pursuant to the terms of the Class A-4M Put Agreement so long as
no Liquidity Termination Event has occurred that has caused the Class A-4M
Put Agreement to terminate;
(iii) to pay to the Placement Agents or the Class A-4M Liquidity
Provider in accordance with the Class A-4M Put Agreement, as applicable,
the Class A-4M Placement Fee so long as no Liquidity Termination Event has
occurred that has caused the Class A-4M Put Agreement to terminate;
(iv) to make distributions to the Holders of the Class A-4M
Certificates and Class A-4MS Certificates in accordance with Section
4.01(q) hereof;
(v) to pay to the Paying Agent any amounts deposited by the Paying
Agent in the Class A-4M Trust Account not required to be deposited
therein; and
(vi) to clear and terminate the Class A-4M Trust Account at the
termination of this Agreement pursuant to Section 9.01.
(g) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account as contemplated by Section
4.01(n).
(h) The Trustee shall on each P&I Advance Date to occur in March of
each year, and in the event the final Distribution Date occurs in February on
the P&I Advance Date to occur in such February, withdraw from the Interest
Reserve Account and deposit into the Distribution Account in respect of each
Interest Reserve Loan, an amount equal to the aggregate of the Interest Reserve
Amounts deposited into the Interest Reserve Account pursuant to Section 3.04(c)
during the immediately preceding Collection Period and, if applicable, the
second preceding Collection Period.
(i) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Additional Interest Account to the extent required to make
the distributions of Additional Interest required by Section 4.01(b).
(j) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Gain-On-Sale Reserve Account as contemplated by Section
4.01(o).
(k) In the event that servicing advances have been made with respect
to a Non-Serviced Mortgage Loan under the related Non-Serviced Pooling and
Servicing Agreement in accordance with the related Non-Serviced Pooling and
Servicing Agreement, if a subsequent determination has been made that such
advance constitutes a nonrecoverable advance, the party that made such advance
shall be entitled to a reimbursement of such advance with interest thereon as
set forth in the related Non-Serviced Pooling and Servicing Agreement, from
general collections on all Mortgage Loans and REO Properties in the Certificate
Account (up to, with respect to a servicing advance, the Non-Serviced Mortgage
Loan's pro rata share of such advance, or if the amount of such pro rata share,
together with amounts available from collections in the certificate account
created under the related Non-Serviced Pooling and Servicing Agreement, is
insufficient to reimburse the party that made such advance, then up to the full
amount of such advance made on the Non-Serviced Mortgage Loan and interest
thereon) subject, in each case, to the terms of the related Intercreditor
Agreement.
(l) The Paying Agent shall withdraw the Interest Shortfall Amount
from the Interest Shortfall Account on the first P&I Advance Date only and
deposit such amount into the Distribution Account.
Section 3.06. Investment of Funds in the Servicing Accounts, Reserve
Accounts, Certificate Account, Floating Rate Accounts, Funding Accounts,
Interest Reserve Account, Distribution Account, Companion Distribution Account,
Additional Interest Account, Class A-4M Trust Account, Class A-MM Trust Account,
Gain-on-Sale Reserve Account, REO Account and Interest Shortfall Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account or the
Certificate Account (each, for purposes of this Section 3.06, an "Investment
Account"); the Companion Paying Agent may direct in writing any depository
institution maintaining the Companion Distribution Account (also, for purposes
of this Section 3.06, an "Investment Account"); the Special Servicer may direct
in writing any depository institution maintaining the REO Account (also, for
purposes of this Section 3.06, an "Investment Account"); and the Trustee may
direct in writing any depository institution maintaining the Distribution
Account, the Floating Rate Accounts, the Gain-on-Sale Reserve Account, the
Interest Reserve Account, the Interest Shortfall Account, the Additional
Interest Account, the Class A-4M Trust Account or the Class A-MM Trust 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, 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. Funds held in the
Distribution Account, the Companion Distribution Account, the Additional
Interest Account, the Floating Rate Accounts, the Interest Reserve Account, the
Interest Shortfall Account and the Gain-on-Sale Reserve Account may remain
uninvested. In the event that the Master Servicer shall have failed to give
investment directions for any Servicing Account, any Reserve Account or the
Certificate Account (exclusive of any accounts as are held by the Master
Servicer) or the Special Servicer shall have failed to give investment
directions for the REO Account by 11:00 a.m. New York time on any Business Day
on which there may be uninvested cash, such funds held in the REO Account shall
be invested in securities described in clause (i) of the definition of the term
"Permitted Investments"; and such funds held in such other accounts shall be
invested in securities described in clause (v) of such definition. 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). The Master Servicer on behalf of the Trustee
for the benefit of Certificateholders (with respect to Permitted Investments of
amounts in the Servicing Accounts, the Reserve Accounts or the Certificate
Account), the Special Servicer on behalf of the Trustee for the benefit of
Certificateholders (with respect to Permitted Investments of amounts in the REO
Account) and the Trustee (with respect to Permitted Investments of amounts in
the Distribution Account, the Floating Rate Accounts, the Gain-on-Sale Reserve
Account, the Interest Reserve Account, the Interest Shortfall Account, the
Additional Interest Account, the Class A-4M Trust Account or the Class A-MM
Trust Account) for the benefit of the Certificateholders, and the Companion
Paying Agent with respect to the Companion Distribution Account, shall (and the
Trustee hereby designates the Master Servicer and the Special Servicer, with
respect to any Investment Account maintained by them, and itself, with respect
to the Distribution Account, the Additional Interest Account, the Interest
Reserve Account, the Floating Rate Accounts, the Interest Shortfall Account, and
the Gain-on-Sale Reserve Account, as applicable, as the Person that shall)
maintain continuous possession of any Permitted Investment that is either (i) a
"certificated security", as such term is defined in the UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Master Servicer, the Special Servicer or the Trustee
shall constitute possession by the Trustee, as secured party, for purposes of
Section 9-313 of the UCC and any other applicable law. If amounts on deposit in
an Investment Account are at any time invested in a Permitted Investment payable
on demand, the Master Servicer (in the case of the Certificate Account,
Servicing Accounts and Reserve Accounts), the Special Servicer (in the case of
the REO Account), the Trustee (with respect to Permitted Investments of amounts
in the Distribution Account, the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Floating Rate Accounts, the Interest Shortfall Account, the
Additional Interest Account, the Class A-4M Trust Account or the Class A-MM
Trust Account) or the Companion Paying Agent with respect to the Companion
Distribution Account, shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day of such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts or the Certificate
Account, interest and investment income realized on funds deposited therein, to
the extent of the related Net Investment Earnings, if any, for each Collection
Period and, in the case of a Reserve Account or a Servicing Account, to the
extent not otherwise payable to the related Mortgagor in accordance with
applicable law or the related Mortgage Loan documents, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(f) or 3.05(a), as applicable. Whether
or not the Special Servicer directs the investment of funds in the REO Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). Whether or not the
Trustee directs the investment of funds in the Distribution Account, the
Interest Reserve Account, the Floating Rate Accounts, the Additional Interest
Account, the Gain-on-Sale Reserve Account, the Class A-4M Trust Account or the
Class A-MM Trust Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
each related Distribution Date, shall be for the sole and exclusive benefit of
the Trustee and shall be subject to its (or the Paying Agent's on its behalf)
withdrawal in accordance with Section 3.05(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Servicing Accounts, the Reserve Accounts and
the Certificate Account, excluding any accounts containing amounts invested
solely for the benefit of, and at the direction of, the Mortgagor under the
terms of the Mortgage Loan or applicable law), the Companion Paying Agent (in
the case of the Companion Distribution Account), the Special Servicer (in the
case of the REO Account) and the Trustee (with respect to Permitted Investments
of amounts in the Distribution Account, the Additional Interest Account, the
Floating Rate Accounts, the Interest Reserve Account, the Gain-on-Sale Reserve
Account, the Class A-4M Trust Account or the Class A-MM Trust Account) shall
promptly deposit therein from its own funds, without right of reimbursement, no
later than, in the case of the Master Servicer and Special Servicer, the end of
the Collection Period during which such loss was incurred and in the case of the
Trustee, no later than 12:00 noon, New York City time, on the Distribution Date,
the amount of the Net Investment Loss, if any, for such Collection Period or on
such Distribution Date; provided that none of the Master Servicer, the Special
Servicer or the Trustee 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 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 and the Trustee, the Special Servicer or the Master Servicer fails to
deposit any losses with respect to such Permitted Investment pursuant to Section
3.06(b), the Trustee may (or, in the event of a default by the Trustee, the
Master Servicer or Special Servicer shall) and, subject to Section 8.02, upon
the request of Holders of Certificates entitled to not less than 25% of the
Voting Rights allocated to any Class, shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
Section 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans and
Companion Loans to the extent that the Trust Fund has an insurable interest, but
other than with respect to the Non-Serviced Mortgage Loans and their related
Non-Serviced Companion Loans) and the Special Servicer (with respect to REO
Properties to the extent that the Trust Fund has an insurable interest) shall,
consistent with the Servicing Standard, cause to be maintained for each
Mortgaged Property all insurance coverage as is required under the related
Mortgage; provided that if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer shall exercise such discretion in a manner consistent with the
Servicing Standard; provided, further, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to exercise its reasonable best
efforts to obtain the required insurance coverage from Qualified Insurers and
required insurance coverage obtained by the Master Servicer shall be from
Qualified Insurers. For the avoidance of doubt, REO Property with respect to the
Non-Serviced Mortgage Loans is excluded for all purposes from this Section 3.07.
The cost of any such insurance coverage obtained by either the Master Servicer
or the Special Servicer shall be a Servicing Advance to be paid by the Master
Servicer pursuant to Section 3.03. Whether or not the applicable Mortgage Loan
documents require such insurance, the Majority Subordinate Certificateholder may
request that earthquake insurance be secured for one or more Mortgaged
Properties at the expense of the Majority Subordinate Certificateholder. Subject
to Section 3.17(a), the Special Servicer shall also cause to be maintained for
each REO Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage; provided that all such insurance shall be
obtained from Qualified Insurers. All such insurance policies maintained by the
Master Servicer or the Special Servicer (i) shall contain (if they insure
against loss to property and do not relate to an REO Property) a "standard"
mortgagee clause, with loss payable to the Trustee or the Master Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans); (ii) shall be in the name of the Special Servicer (in the case
of insurance maintained in respect of REO Properties), on behalf of the Trustee;
(iii) shall be non-cancelable without 30 days' prior written notice to the
insured party; (iv) shall include coverage in an amount not less than the lesser
of (x) the full replacement cost of the improvements securing a Mortgaged
Property or REO Property, as applicable, or (y) the outstanding principal
balance owing on the related Mortgage Loan or REO Loan, as applicable, and in
any event, the amount necessary to avoid the operation of any co-insurance
provisions; (v) shall include a replacement cost endorsement providing no
deduction for depreciation (unless such endorsement is not permitted under the
related Mortgage Loan documents); (vi) shall include such other insurance,
including, to the extent available at commercially reasonable rates, earthquake
insurance, where applicable, as required under the applicable Mortgage or other
Mortgage Loan document; and (vii) in each case such insurance shall be issued by
an insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case subject to the rights of any tenants and ground lessors,
as the case may be, and in each case in accordance with the terms of the related
Mortgage and the Servicing Standard) shall be deposited in the Certificate
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan or Companion Loan, or in the REO
Account, subject to withdrawal pursuant to Section 3.16(c), in the case of
amounts received in respect of an REO Property. Any cost incurred by the Master
Servicer or the Special Servicer in maintaining any such insurance shall not,
for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to unpaid principal balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan or
Companion Loans so permit.
Notwithstanding the foregoing, the Master Servicer or Special
Servicer, as applicable, will not be required to maintain (and in the case of
the Special Servicer, with respect to any Specially Serviced Mortgage Loan), 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 terrorist or similar acts or windstorm coverage, if and only
if the Master Servicer with respect to non-Specially Serviced Mortgage Loans or
the Special Servicer with respect to Specially Serviced Mortgage Loans, in
consultation with the Controlling Class Representative, and, with respect to
each Co-Lender Loan (other than the Non-Serviced Mortgage Loans), in
consultation with the related Companion Holder if required under the applicable
Intercreditor Agreement, 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 reasonably rates (which determination
as to whether such insurance is available at commercially reasonable rates shall
be made subject to consultation with the Special Servicer in consultation with
and subject to the approval of the Controlling Class Representative with respect
to all Mortgage Loans) 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 region in which such Mortgaged Property is located and the
Controlling Class Representative has approved the decision not to require the
Mortgagor to maintain terrorism insurance or windstorm coverage (provided that
the decision of the Controlling Class Representative to grant or withhold such
consent shall be disregarded by the Special Servicer if such consent or lack of
consent would cause the Master Servicer or the Special Servicer, as applicable,
to violate the Servicing Standard); provided, however, the Controlling Class
Representative's approval shall be deemed to have been given if it has not
responded within 5 Business Days of receipt of the Master Servicer's or the
Special Servicer's written recommendation and the information upon which such
recommendation is based; provided, further, upon the Master Servicer's or the
Special Servicer's determination, as applicable, consistent with the Servicing
Standard, that exigent circumstances do not allow the Master Servicer or the
Special Servicer to consult with the Controlling Class Representative or
Companion Holder, if applicable, the Master Servicer or the Special Servicer, as
applicable, shall not be required to do so; provided, further, during the period
that the Special Servicer or Controlling Class Representative is evaluating such
insurance hereunder, the Master Servicer shall not be liable for any loss
related to its failure to require the Mortgagor to maintain terrorism insurance
or windstorm coverage and shall not be in default of its obligations hereunder
as a result of such failure. The Special Servicer shall promptly notify the
Master Servicer of each determination under this paragraph.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans, Companion Loans and/or REO
Properties that it is required to service and administer, then, to the extent
such policy (i) is obtained from a Qualified Insurer and (ii) provides
protection equivalent to the individual policies otherwise required, the Master
Servicer or the Special Servicer, as the case may be, shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties and/or REO Properties. Such
blanket policy may contain a deductible clause (not in excess of a customary
amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such policy, promptly deposit into the
Certificate Account from its own funds the amount not otherwise payable under
the blanket policy because of such deductible clause. The Master Servicer or the
Special Servicer, as appropriate, shall prepare and present, on behalf of
itself, the Trustee and Certificateholders, claims under any such blanket policy
in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not cause the qualification, downgrade or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for ten days' written notice to the Trustee prior to cancellation. The
Master Servicer and the Special Servicer shall each cause the Trustee to be an
additional loss payee on any policy currently in place or procured pursuant to
the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
Section 3.08. Enforcement of Alienation Clauses.
(a) (i) Subject to section 3.08(a)(iii) below, upon receipt of any
request of a waiver in respect of a due-on-sale or due-on-encumbrance provision,
the Master Servicer, with respect to Mortgage Loans (other than the Non-Serviced
Mortgage Loans and the Tenants in Common Loans) that are not Specially Serviced
Mortgage Loans, and the Special Servicer, with respect to Specially Serviced
Mortgage Loans, shall promptly analyze such waiver, including the preparation of
written materials in connection with such analysis, and will close the related
transaction, subject to the consent rights (if any) of each Companion Holder
pursuant to the related Intercreditor Agreement as provided in this Section
3.08. With respect to all Mortgage Loans other than Specially Serviced Mortgage
Loans and the Non-Serviced Mortgage Loans and the Tenants in Common Loans, the
Master Servicer or, in the case of Specially Serviced Mortgage Loans, the
Special Servicer, on behalf of the Trustee as the mortgagee of record, shall, to
the extent permitted by applicable law, enforce the restrictions contained in
the related Mortgage on transfers or further encumbrances of the related
Mortgaged Property and on transfers of interests in the related Mortgagor,
unless following its receipt of a request of a waiver in respect of a
due-on-sale or due-on-encumbrance provision the Master Servicer (with the
written consent of the Special Servicer, which consent shall be deemed given if
not denied within the later of (a) 15 Business Days after the Special Servicer's
receipt of the written recommendation of the Master Servicer for such action and
any additional information the Special Servicer may reasonably request for the
analysis of such request (such recommendation and information may be delivered
in an electronic format reasonably acceptable to the Master Servicer and the
Special Servicer) and (b) 5 Business Days after the Controlling Class
Representative's receipt of the written recommendation of the Special Servicer
for such action and any additional information the Controlling Class
Representative may reasonably request for the analysis of such request, which
notice shall be given by the Special Servicer no later than 10 Business Days
after the commencement of the 15 Business Day period described in the preceding
clause (a)) or the Special Servicer (with the written consent of the Controlling
Class Representative, which consent shall be deemed given if not denied within 5
Business Days after the Controlling Class Representative's receipt of the
written recommendation of the Special Servicer for such action and any
additional information the Controlling Class Representative may reasonably
request for the analysis of such request), as applicable, has determined,
consistent with the Servicing Standard, that the waiver of such restrictions
would be in accordance with the Servicing Standard. Promptly after the Master
Servicer (with the written consent of the Special Servicer to the extent
required in the preceding sentence) or the Special Servicer (with the written
consent of the Controlling Class Representative to the extent required in the
preceding sentence), as applicable, has made any such determination, the Master
Servicer or the Special Servicer shall deliver to the Trustee, the Rating
Agencies and each other party hereto an Officer's Certificate setting forth the
basis for such determination.
(ii) Subject to Section 3.08(a)(iii) below, with respect to any
Tenants-in-Common Loan, the Master Servicer, on behalf of the Trustee as
the mortgagee of record, shall review (A) each request for a sale,
transfer or syndication of any Mortgagor's equity interests in the related
Mortgagor and shall promptly analyze such request, including, with regard
to each proposed Mortgagor transferee, the financial statements, credit
information, organizational documents and other written materials set
forth on the applicable schedule on Exhibit Z hereto, to determine, in
accordance with the Servicing Standard, whether the requested sale,
transfer or syndication meets the applicable requirements and to obtain
any consents required under any related Intercreditor Agreement, and (B)
the corresponding waiver of any applicable due-on-sale or
due-on-encumbrance provision and determine whether approval of such waiver
is consistent with the Servicing Standard. Promptly after the Master
Servicer has made any such affirmative determination that such sale,
transfer or syndication meets the applicable requirements on Exhibit Z,
the Master Servicer shall deliver to the Special Servicer, the Trustee,
the Rating Agencies, the Controlling Class Representative and each other
party hereto, no later than five (5) Business Days prior to such sale,
transfer or syndication, an Officer's Certificate setting forth notice of
the approval or disapproval and the basis for such determination, set
forth in Exhibit AA, including evidence of compliance with each of the
requirements for such Mortgage Loan described on Exhibit Z, provided,
however, if the proposed investor/transferee is a single member limited
liability company not organized in Delaware or is not an accredited
investor, the provisions of this Section 3.08(a)(ii) shall not apply and
approval of any such transfer shall follow the procedures set forth in
Section 3.08(a)(i), and provided further that notwithstanding Section
3.11(c), with respect to any transfer approved pursuant to this Section
3.08(a)(ii), the Special Servicer shall be entitled to certain of the fees
as set forth on Exhibit Z paid by the Mortgagor, and the Master Servicer
shall not waive any such fees without the consent of the Special Servicer.
(iii) With respect to all Mortgage Loans (other than the
Non-Serviced Mortgage Loans), neither the Master Servicer nor the Special
Servicer shall exercise (and the Special Servicer shall not consent to)
any waiver in respect of a due-on-encumbrance provision of any Mortgage
Loan (i) with respect to which the aggregate of the Stated Principal
Balance of such Mortgage Loan and the Stated Principal Balance of all
other Mortgage Loans that are cross-collateralized, cross-defaulted or
have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan, are one of the ten largest Mortgage Loans or concentrations
of Mortgage Loans, as of the date of such waiver request, without
receiving prior written confirmation from Moody's and S&P that such action
would not result in a downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates or (ii) with respect to which
(a) the aggregate of the Stated Principal Balance of such Mortgage Loan
and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized, cross-defaulted or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, is equal to or in
excess of $20,000,000, (b) the aggregate of the Stated Principal Balance
of such Mortgage Loan and the Stated Principal Balance of all other
Mortgage Loans that are cross-collateralized, cross-defaulted or have been
made to Mortgagors affiliated with the Mortgagor on such Mortgage Loan,
are greater than 2% of the aggregate Stated Principal Balance of all
Mortgage Loans, (c) such Mortgage Loan is one of the ten largest Mortgage
Loans as of the date of the waiver (by Stated Principal Balance), or (d)
such Mortgage Loan has a Loan-to-Value Ratio (calculated to include the
additional indebtedness secured by any encumbrance) that is equal to or
greater than 85% and a Debt Service Coverage Ratio (calculated to include
the additional debt from any encumbrance) of 1.20x or less, without
receiving a prior written confirmation from S&P that such action would not
result in a downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates. With respect to a waiver of a due-on-sale
provision, neither the Master Servicer nor the Special Servicer shall
waive any such restriction without receiving prior written confirmation
from Moody's and S&P that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the
Certificates; provided that, if the Mortgage Loan (a) does not have an
aggregate Stated Principal Balance (including the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized, cross-defaulted
or have been made to Mortgagors affiliated with the Mortgagor on such
Mortgage Loan) equal to or in excess of $35,000,000 (or $25,000,000 with
respect to Moody's), (b) does not have an aggregate Stated Principal
Balance (including the Stated Principal Balance of all other Mortgage
Loans that are cross-collateralized, cross-defaulted or have been made to
Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater
than 5% of the aggregate Stated Principal Balance of all Mortgage Loans or
(c) is not one of the ten largest Mortgage Loans as of the date of the
waiver (by Stated Principal Balance), the Master Servicer or the Special
Servicer, as applicable, may waive such requirement without confirmation
by S&P in accordance with the Servicing Standard; provided, further, that,
if the Mortgage Loan does not meet the criteria set forth in clause (ii)
of the immediately preceding sentence, the Master Servicer or Special
Servicer, as applicable, may waive such requirement without approval by
Moody's or S&P in accordance with the Servicing Standard. With respect to
each Co-Lender Loan, no waiver of a due-on-sale or due-on-encumbrance
provision will be effective unless the Master Servicer or Special
Servicer, as applicable, first consults with the related Subordinate
Companion Holder if required under the applicable Intercreditor Agreement.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (with respect to Mortgage Loans other than Specially Serviced
Mortgage Loans and the Non-Serviced Mortgage Loans) (without the Special
Servicer's consent) or the Special Servicer (with respect to Specially Serviced
Mortgage Loans) may grant, without any Rating Agency confirmation as provided in
paragraph (a) above, a Mortgagor's request for 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 Master Servicer or the Special Servicer, as applicable, 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.
(c) Within 90 days of the Closing Date, with respect to each of the
Mortgage Loans (other than the Non-Serviced Mortgage Loans) covered by an
environmental insurance policy, if any, the Master Servicer shall notify the
insurer under such environmental insurance policy and take all other action
necessary for the Trustee, on behalf of the Certificateholders, to be an insured
(and for the Master Servicer, on behalf of the Trust Fund, to make claims) under
such environmental insurance policy. In the event that the Master 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
covered thereby, the Master Servicer 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. Any legal fees, premiums or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim under an environmental insurance policy shall be
paid by the Master 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 (other than the Non-Serviced Mortgage Loans), the Master
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 must be taken under such policy to realize the full
value thereof for the benefit of the Certificateholders in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer receives notice of any
termination of any environmental insurance policy that relates to one or more
Mortgage Loans (other than the Non-Serviced Mortgage Loans), the Master Servicer
shall, within five Business Days after receipt of such notice, notify the
Special Servicer, the Controlling Class Representative, the related Companion
Holder (in the case of a Co-Lender Loan), the Rating Agencies and the Trustee of
such termination in writing. Upon receipt of such notice, the Master Servicer
with respect to non-Specially Serviced Mortgage Loans (other than the
Non-Serviced Mortgage Loans), and the Special Servicer with respect to Specially
Serviced Mortgage Loans, 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 Mortgage Loan documents. 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 the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
(d) For the avoidance of doubt, any servicing obligation set forth
under this Section 3.08 of the Master Servicer or Special Servicer, as
applicable, for any Co-Lender Loan shall also apply to the related Companion
Loan.
Section 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans or Companion Loans
(other than the Non-Serviced Mortgage Loans and their related Non-Serviced
Companion Loans) as come into and continue in default and as to which
satisfactory arrangements cannot be made for collection of delinquent payments,
including, without limitation, pursuant to Section 3.20. Subject to the second
paragraph of Section 3.03(c), the Master Servicer shall advance all costs and
expenses (other than costs or expenses that would, if incurred, constitute a
Nonrecoverable Servicing Advance) incurred by the Special Servicer in any such
proceedings, and shall be entitled to reimbursement therefor as provided in
Section 3.05(a). Nothing contained in this Section 3.09 shall be construed so as
to require the Special Servicer, on behalf of the Trust Fund, 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 Special
Servicer in accordance with the Servicing Standard and in its reasonable and
good faith judgment taking into account, as applicable, among other factors, the
period and amount of any delinquency on the affected Mortgage Loan or Companion
Loan, the occupancy level and physical condition of the Mortgaged Property or
REO Property, the state of the local economy, the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a) 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
Master Servicer or the Special Servicer deems it necessary and prudent for
purposes of establishing the fair market value of any Mortgaged Property
securing a Specially Serviced Mortgage Loan, Defaulted Mortgage Loan or
defaulted Companion Loan, whether for purposes of bidding at foreclosure or
otherwise, it may, at the expense of the Trust Fund, have an appraisal performed
with respect to such property by an Independent Appraiser or other expert in
real estate matters; which appraisal shall take into account, as applicable,
among other factors, the period and amount of any delinquency on the affected
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a),
including without limitation, any environmental, engineering or other third
party reports available, and other factors that a prudent real estate appraiser
would consider.
With respect to each Required Appraisal Mortgage Loan (other than
the Non-Serviced Mortgage Loans), the Special Servicer will be required to
obtain a Required Appraisal (or with respect to any Mortgage Loan with an
outstanding principal balance less than $2,000,000, an internal valuation
performed by the Special Servicer) within 60 days of a Mortgage Loan becoming a
Required Appraisal Mortgage Loan (unless an appraisal meeting the requirements
of a Required Appraisal was obtained for such Required Appraisal Mortgage Loan
within the prior 12 months and the Special Servicer has no actual knowledge of a
material adverse change in the condition of the related Mortgaged Property in
which case such appraisal may be a letter update of the Required Appraisal) and
thereafter shall obtain a Required Appraisal (or with respect to any Mortgage
Loan with an outstanding principal balance less than $2,000,000, and in lieu of
an Appraisal, an internal valuation performed by the Special Servicer) once
every 12 months (or sooner if the Special Servicer has actual knowledge of a
material adverse change in the condition of the related Mortgaged Property) if
such Mortgage Loan remains a Required Appraisal Mortgage Loan. The Special
Servicer will deliver a copy of each Required Appraisal (or letter update or
internal valuation) to the Master Servicer, the Controlling Class Representative
and the Trustee (and, if such Required Appraisal Mortgage Loan is a Co-Lender
Loan, to the related Companion Holder) within 10 Business Days of obtaining such
Required Appraisal (or letter update or internal valuation). Subject to the
second paragraph of Section 3.03(c), the Master Servicer shall advance the cost
of such Required Appraisal; provided, however, such expense will be subject to
reimbursement to the Master Servicer as a Servicing Advance out of the
Certificate Account pursuant to Section 3.05(a)(vi) and 3.05(a)(vii).
Notwithstanding the foregoing, in no event shall the Master Servicer
or the Special Servicer obtain an appraisal of a Companion Loan pursuant to this
Section 3.09(a) to the extent the related Co-Lender Loan has been paid in full.
(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 may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part of the Trust Fund (to the extent not allocable to a
Companion Loan) will not cause the imposition of a tax on either of REMIC
I or REMIC II under the REMIC Provisions or cause either of REMIC I or
REMIC II to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (which may include through a single member limited liability company
owned by the Trust), initiate foreclosure proceedings, obtain title to a
Mortgaged Property by deed in lieu of foreclosure or otherwise, or take any
other action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders, could, in the
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, made in accordance with the Servicing Standard, be considered to hold
title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law (a "potentially responsible party"), unless (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee that shall specify
all of the bases for such determination) the Special Servicer has previously
determined in accordance with the Servicing Standard, and 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 (a copy of which
Environmental Assessment shall be delivered to the Trustee, the Controlling
Class Representative and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; 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 reasonably be
expected to be required, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
to be performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such actions with respect
to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall be at the expense
of the Trust Fund (except to the extent that such Additional Trust Fund Expense
is payable out of the proceeds of any Companion Loan pursuant to the related
Intercreditor Agreement and this Agreement); and if any such Environmental
Assessment so warrants, the Special Servicer shall 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 paragraph have
been satisfied, the cost of which shall be at the expense of the Trust Fund.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
thereof has not been satisfied with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan (other than the Non-Serviced Mortgage Loans) and there
is no breach of a representation or warranty requiring repurchase under the
applicable Mortgage Loan Purchase Agreement, the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of 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 all or a portion 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 Controlling
Class Representative and the Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention, (ii) the Trustee shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release all or a portion of
such Mortgaged Property and (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).
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative and the Trustee monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a Defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan or Companion Loan permit such an action and
shall, in accordance with the Servicing Standard, seek such deficiency judgment
if it deems advisable.
(g) The Master Servicer 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
(other than the Non-Serviced Mortgage Loans) and, if applicable, 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.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan, Companion Loan or REO Property (other than with respect to the
Non-Serviced Mortgage Loans) and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Controlling Class Representative and the Master Servicer no later than one
Business Day following the Determination Date.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
Section 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing, who shall release or cause the related Custodian to
release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge 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) have been or will be so deposited) of a Servicing
Officer and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan (including any related Companion Loan), the
Master Servicer or the Special Servicer shall otherwise require any Mortgage
File (or any portion thereof), the Trustee, upon request of the Master Servicer
and receipt from the Master Servicer of a Request for Release in the form of
Exhibit D-1 attached hereto signed by a Servicing Officer thereof, or upon
request of the Special Servicer and receipt from the Special Servicer of a
Request for Release in the form of Exhibit D-2 attached hereto, shall release,
or cause any related Custodian to release, such Mortgage File (or portion
thereof) to the Master Servicer or the Special Servicer, as the case may be.
Upon return of such Mortgage File (or portion thereof) to the Trustee or related
Custodian, or the delivery to the Trustee of a certificate of a Servicing
Officer of the Special Servicer stating that such Mortgage Loan was liquidated
and that all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than 3 Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may, subject to Section 3.01(b),
execute and deliver in the name of the Trustee based on a limited power of
attorney issued in favor of the Special Servicer pursuant to Section 3.01(b)),
in the form supplied to the Trustee, any court pleadings, requests for trustee's
sale or other documents stated by the Special Servicer to be reasonably
necessary to the foreclosure or trustee's sale in respect of a Mortgaged
Property or REO Property or to any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note (including any note evidencing a
related Companion Loan) or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Mortgage Note, Mortgage,
Guaranty, this Agreement or the Mortgage Loan Purchase Agreement or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee 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.
Section 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). No Master Servicing Fee
shall be payable with respect to any Companion Loan unless such fee is expressly
set forth in the related Intercreditor Agreement. The Master Servicing Fee with
respect to the Non-Serviced Mortgage Loans will be set forth on the Mortgage
Loan Schedule. The Master Servicing Fee with respect to any Mortgage Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
Earned but unpaid Master Servicing Fees shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Master Servicer shall be
entitled to recover unpaid Master Servicing Fees in respect of any Mortgage Loan
or REO Loan out of that portion of related Insurance Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a)(iii) and otherwise as provided in Section 3.05(a)(vii). The right to
receive the Master Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
(b) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest, assumption application fees if the related
assumption is completed, Tenant-in-Common Loan transfer and assumption
application fees if the related transfer and assumption application is completed
and an assumption fee is collected on such Tenant-in-Common Loan, modification
fees for modifications to Mortgage Loans or Companion Loans that are not
Specially Serviced Mortgage Loans made by the Master Servicer pursuant to
Section 3.20(i), defeasance fees, charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and any similar
fees (excluding Prepayment Premiums or Yield Maintenance Charges), in each case
to the extent actually paid by a Mortgagor with respect to a Mortgage Loan or
Companion Loan and, with respect to late payment charges and penalty charges,
accrued during the time that such Mortgage Loan or Companion Loan was not a
Specially Serviced Mortgage Loan, and (ii) fifty percent (50%) of (A) any
assumption fees or Tenant-in-Common Loan assumption fees and (B) any assumption
application fees and Tenant-in-Common Loan transfer and assumption application
fees if the related assumption or Tenant-in-Common Loan transfer and assumption
fails to be completed or no assumption fee is collected with respect to a
Tenant-In-Common Loan, in each case to the extent actually paid by a Mortgagor
with respect to any Mortgage Loan or Companion Loan if such Mortgage Loan or
Companion Loan is not a Specially Serviced Mortgage Loan, may be retained by the
Master Servicer and are not required to be deposited in the Certificate Account;
provided that the Master Servicer's right to receive late payment charges and
Penalty Interest pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay interest on Advances as provided in
Sections 3.03(d) and 4.03(d) or Additional Trust Fund Expenses (other than
Special Servicing Fees, Workout Fees and/or Liquidation Fees) or interest on
Advances pursuant to this Section 3.11(b). To the extent the Master Servicer or
the Special Servicer receives late payment charges or Penalty Interest on a
Mortgage Loan for which interest on Advances or Additional Trust Fund Expenses
(other than Special Servicing Fees, Workout Fees and/or Liquidation Fees)
related to such Mortgage Loan and not previously reimbursed to the Trust Fund,
the Master Servicer shall deposit in the Certificate Account, on or prior to the
P&I Advance Date following the collection of such late payment charges or
Penalty Interest, an amount equal to the lesser of (i) the amount of late
payment charges or Penalty Interest received on such Mortgage Loan or (ii) the
sum of the amount of interest paid to the Master Servicer on Advances related to
such Mortgage Loan since the Closing Date for which the Trust Fund has not been
previously reimbursed and the amount of Additional Trust Fund Expenses (other
than Special Servicing Fees, Workout Fees and/or Liquidation Fees) related to
such Mortgage Loan incurred since the Closing Date and not previously reimbursed
to the Trust Fund. To the extent that the Master Servicer is not entitled to
late payment charges or Penalty Interest pursuant to the immediately preceding
sentence, the Master Servicer shall deposit such late payment charges and
Penalty Interest in the Certificate Account. Penalty Interest or late payment
charges in respect of any Mortgage Loan or Companion Loan which has accrued
during the period when the related Mortgage Loan or Companion Loan is not a
Specially Serviced Mortgage Loan shall be additional compensation to the Master
Servicer even if collected during the period when the related Mortgage Loan or
Companion Loan is a Specially Serviced Mortgage Loan. The Master Servicer shall
also be entitled to additional servicing compensation in the form of (i)
Prepayment Interest Excesses; (ii) interest or other income earned on deposits
in the Certificate Account and the Interest Reserve 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 Collection Period), and (iii) to the
extent not required to be paid to any Mortgagor under applicable law or the
terms of the related Mortgage Loan or Companion Loan, any interest or other
income earned on deposits in the Reserve Accounts and Servicing Accounts
maintained thereby.
The Master 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 due and owing
to any of its Sub-Servicers and the premiums for any blanket policy insuring
against hazard losses pursuant to Section 3.07(b)), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the Master
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement. The Master Servicer shall not waive or agree to any
discount of any portion of assumption fees to which the Special Servicer is
entitled.
(c) 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 each REO Loan (other than the
Non-Serviced Mortgage Loans and the related REO Loan, if any). As to each
Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall
accrue at the Special Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed and calculated on
the basis of a 360-day year consisting of twelve 30-day months (or, in the event
of a Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or REO Loan, on the basis of the actual number of days to elapse
from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans, Companion Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan or Companion Loan for so long as it remains a
Corrected Mortgage Loan (net of any portion of such collection payable or
reimbursable to the Master Servicer, the Special Servicer, or the Trustee for
any related unpaid or unreimbursed Master Servicing Fees and/or Advances)
received on such Mortgage Loan or Companion Loan for so long as it remains a
Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage
Loan will cease to be payable if a Servicing Transfer Event occurs with respect
thereto or if the related Mortgaged Property becomes an REO Property; provided
that a new Workout Fee would become payable if and when such Mortgage Loan and,
if applicable, Companion Loan again became a Corrected Mortgage Loan. If the
Special Servicer is terminated or resigns, it will retain the right to receive
any and all Workout Fees payable with respect to any Specially Serviced Mortgage
Loan that became a Corrected Mortgage Loan during the period that it acted as
Special Servicer and remained a Corrected Mortgage Loan at the time of its
termination or resignation or if the Special Servicer resolved the circumstances
and/or conditions (including by way of a modification of the related Mortgage
Loan documents) causing the Mortgage Loan to be a Specially Serviced Mortgage
Loan, but the Mortgage Loan had not as of the time the Special Servicer is
terminated or resigns become a Corrected Mortgage Loan because the related
Mortgagor had not made three consecutive monthly debt service payments (but made
the most recent monthly debt service payment prior to the termination of the
Special Servicer) and subsequently becomes a Corrected Mortgage Loan as a result
of making three such consecutive payments. The successor Special Servicer will
not be entitled to any portion of those Workout Fees.
In addition, with respect to each Specially Serviced Mortgage Loan
and REO Loan (other than the Non-Serviced Mortgage Loans) or Mortgage Loan
subject to repurchase by the applicable Mortgage Loan Seller (to the extent such
Mortgage Loan was not repurchased within the cure period specified in the
related Mortgage Loan Purchase Agreement) (or Qualified Substitute Mortgage Loan
substituted in lieu thereof), the Special Servicer shall be entitled to the
Liquidation Fee payable out of, and calculated by application of the Liquidation
Fee Rate to, all amounts (whether in the form of payments of Liquidation
Proceeds or REO Revenues or a full or discounted payoff by the Mortgagor)
received in respect of such Mortgage Loan or Companion Loan (or, in the case of
an REO Loan (other than the Non-Serviced Mortgage Loans) in respect of the
related REO Property) and allocable as a full or partial recovery of principal,
interest and expenses in accordance with Section 3.02(b) or the definition of
"REO Loan," as applicable; provided that no Liquidation Fee shall be payable in
connection with, or out of (i) Insurance Proceeds and (ii) Liquidation Proceeds
resulting from the purchase of any Mortgage Loan or REO Property by a Mortgage
Loan Seller pursuant to the applicable Mortgage Loan Purchase Agreement if
purchased within the cure period set forth in Section 3(c) of such Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder, the Companion
Holder, or the Special Servicer pursuant to Section 3.18(c), Section 3.18(d),
Section 3.18(e), Section 3.18(h) or by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder or the purchasing
Certificateholder pursuant to Section 9.01, or any mezzanine lender pursuant to
the related mezzanine intercreditor agreement if purchased by the mezzanine
lender within 90 days of the related Mortgage Loan becoming a Specially Serviced
Mortgage Loan; and (iii) Liquidation Proceeds resulting from the remittance by
the related Mortgage Loan Seller pursuant to Section 2.03 (if remitted within
the cure period set forth for repurchase in the related Mortgage Loan Purchase
Agreement); provided, further, no Liquidation Fee shall be payable (i) in
connection with a Periodic Payment received in connection with such Mortgage
Loan or (ii) to the extent a Workout Fee is payable concerning the Liquidation
Proceeds.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation 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 Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of: (i) all late
payment charges, Penalty Interest received on or with respect to Specially
Serviced Mortgage Loans actually collected that, with respect to late payment
charges and penalty charges, accrued during the time that the related Mortgage
Loan was a Specially Serviced Mortgage Loan, (ii) one hundred percent (100%) of
any assumption application fees and assumption fees with respect to any
Specially Serviced Mortgage Loan and fifty percent (50%) of (A) any assumption
fees or Tenant-in-Common Loan assumption fees and (B) any assumption application
fees and Tenant-in-Common Loan transfer and assumption application fees if the
related Tenant-in-Common Loan transfer and assumption fails to be completed or
no assumption fee is collected with respect to a Tenant-In-Common Loan with
respect to any Mortgage Loan or Companion Loan if such Mortgage Loan or
Companion Loan is not a Specially Serviced Mortgage Loan, in each case to the
extent actually paid by a Mortgagor, and (iii) modification fees collected on
all Mortgage Loans or Companion Loans (other than modifications made by the
Master Servicer pursuant to Section 3.20(i)), in each case to the extent
actually paid by the related Mortgagor, shall be retained by the Special
Servicer or promptly paid to the Special Servicer by the Master Servicer and
shall not be required to be deposited in the Certificate Account; provided that
the Special Servicer's right to receive late payment charges and Penalty
Interest pursuant to clause (i) above shall be limited to the portion of such
items that have not been applied to pay interest on Advances and property
inspection costs in respect of the related Mortgage Loan as provided in Sections
3.03(d), 3.12(a) and 4.03(d) or Additional Trust Fund Expenses (other than
Special Servicing Fees, Workout Fees and/or Liquidation Fees) pursuant to this
Section 3.11(d). To the extent the Master Servicer or the Special Servicer
receives late payment charges or Penalty Interest on a Mortgage Loan for which
interest on Advances or Additional Trust Fund Expenses (other than Special
Servicing Fees, Workout Fees and/or Liquidation Fees) related to such Mortgage
Loan and not previously reimbursed to the Trust Fund, the Special Servicer shall
transfer to the Master Servicer for deposit in the Certificate Account, on or
prior to the P&I Advance Date following the collection of such late payment
charges or Penalty Interest, an amount equal to the lesser of (i) the amount of
late payment charges or Penalty Interest received on such Mortgage Loan or (ii)
the sum of the amount of interest paid to the Master Servicer on Advances
related to such Mortgage Loan incurred since the Closing Date for which the
Trust Fund has not been previously reimbursed and the amount of Additional Trust
Fund Expenses (other than Special Servicing Fees, Workout Fees and/or
Liquidation Fees) related to such Mortgage Loan since the Closing Date and not
previously reimbursed to the Trust Fund. To the extent that the Special Servicer
is not entitled to late payment charges or Penalty Interest pursuant to the
immediately preceding sentence, the Special Servicer shall promptly transfer
such late payment charges and Penalty Interest to the Master Servicer who shall
deposit such late payment charges and Penalty Interest in the Certificate
Account. The Special Servicer shall also be entitled to additional servicing
compensation in the form of: (i) interest or other income earned on deposits in
the REO Account, if established, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period); and (ii) to the extent not required to be
paid to any Mortgagor under applicable law, any interest or other income earned
on deposits in the Servicing Accounts maintained by the Special Servicer. The
Special Servicer shall be required to pay out of its own funds all general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in Section 3.05(a) if and to
the extent such expenses are not payable directly out of the Certificate Account
or the REO Account.
Section 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) (i) The Special Servicer shall perform or cause to be performed
a physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan becomes a Specially Serviced Mortgage Loan and (ii) the
Master Servicer (in the case of non-Specially Serviced Mortgage Loans and other
than the Non-Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as the related Debt Service
Coverage Ratio set forth in the CMSA Comparative Financial Status Report of a
Mortgage Loan is below 1.00x; provided that with respect to inspections prepared
by the Special Servicer, such expense shall be reimbursable first out of Penalty
Interest and late payment charges otherwise payable to the Special Servicer and
received in the Collection Period during which such inspection related expenses
were incurred, then as an Additional Trust Fund Expense (except to the extent
that such Additional Trust Fund Expense is payable out of the proceeds of any
Companion Loan pursuant to the related Intercreditor Agreement and this
Agreement). Each of the Master Servicer for each Mortgage Loan (other than a
Specially Serviced Mortgage Loan or REO Loan) and the Special Servicer for each
Specially Serviced Mortgage Loan and REO Loan shall (and, in the case of the
Master Servicer, at its expense) perform or cause to be performed an inspection
of all the Mortgaged Properties at least once per calendar year (or, in the case
of each Mortgaged Property securing a Mortgage Loan (other than a Specially
Serviced Mortgage Loan) with a then current principal balance (or allocated loan
amount) of less than $2,000,000 at the time of such inspection, every other
calendar year) beginning in 2008; provided, however, the Master Servicer shall
not be required to inspect any Mortgaged Property that has been inspected by the
Special Servicer during the immediately preceding six months. The Special
Servicer and the Master Servicer shall each prepare (and, in the case of the
Special Servicer, shall deliver to the Master Servicer) a written report of each
such inspection performed by it that sets forth in detail the condition of the
Mortgaged Property and that specifies the existence of: (i) any sale, transfer
or abandonment of the Mortgaged Property of which it is aware, (ii) any change
in the condition or value of the Mortgaged Property that it, in its reasonable
judgment, considers material, or (iii) any visible waste committed on the
Mortgaged Property. The Master Servicer shall deliver such reports to the
Trustee within 45 days of the related inspection and the Trustee shall, subject
to Section 3.15, make copies of all such inspection reports available for review
by Certificateholders and Certificate Owners during normal business hours at the
offices of the Trustee at all times after the Trustee's receipt thereof. Upon
written request and at the expense of the requesting party, the Trustee shall
deliver copies of any such inspection reports to Certificateholders and
Certificate Owners. The Special Servicer shall have the right to inspect or
cause to be inspected (at its own expense) every calendar year any Mortgaged
Property related to a loan that is not a Specially Serviced Mortgage Loan;
provided that the Special Servicer obtains the approval of the Master Servicer
prior to such inspection, and provides a copy of such inspection to the Master
Servicer; provided, further, the Master Servicer and the Special Servicer shall
not both inspect a Mortgaged Property that is not securing a Specially Serviced
Mortgage Loan in the same calendar year. If the Special Servicer performs such
inspection, such inspection shall satisfy the Master Servicer's inspection
obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master Servicer
shall make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
If the Special Servicer initiates a servicing transfer under clause
(b) or (c) of the definition of "Specially Serviced Mortgage Loan," the Special
Servicer shall give written notice thereof to the Master Servicer, the
Controlling Class Representative and the Trustee in order to effectuate such
transfer.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Special Servicer Loan File; (ii) the Appraisal Reduction
Template and (iii) the Realized Loss Template..
(c) Not later than 4:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee (in electronic format acceptable to the
Master Servicer and the Trustee) (A) the most recent CMSA Historical Loan
Modification and Corrected Mortgage Loan Report and CMSA REO Status Report based
upon information received from the Special Servicer pursuant to Section 3.12(b);
(B) a CMSA Property File, a CMSA Comparative Financial Status Report and a CMSA
Financial File, each with the required information as of the end of the
preceding calendar month (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); (C) a CMSA Loan Level Reserve/LOC
Report and CMSA Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (D) a CMSA Servicer
Watchlist/Portfolio Review Guidelines with the required information as of such
Determination Date; and (E) a CMSA Advance Recovery Report, with the required
information as of such Determination Date.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in this Section 3.12
in an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d) and the Master Servicer and the Trustee with respect to the
reports set forth in Section 3.12(c). The Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d) and the related
Non-Serviced Master Servicer and the related Non-Serviced Special Servicer to
the extent required to be provided pursuant to the related Non-Serviced Pooling
and Servicing Agreement. The Trustee may, absent manifest error, conclusively
rely on the CMSA Loan Periodic Update File to be provided by the Master Servicer
pursuant to Section 4.02(b). In the case of information or reports to be
furnished by the Master Servicer to the Trustee pursuant to this Section 3.12,
to the extent that such information is based on reports to be provided by the
Special Servicer pursuant to Section 3.12(b) and this Section 3.12(d) and, to
the extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d), the Master
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer and the
Master Servicer shall not be in default hereunder due to a delay in providing
the reports required by this Section 3.12 to the extent caused by the Special
Servicer's failure to timely provide any report required under Section 3.12(b)
and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans (other than the Non-Serviced Mortgage Loans), shall endeavor, consistent
with the Servicing Standard, to obtain quarterly and annual operating statements
and rent rolls with respect to the related Mortgage Loans and REO Properties,
which efforts shall include (i) in the case of the Mortgage Loans (other than
the Non-Serviced Mortgage Loans), a letter sent to the related Mortgagor each
quarter (followed up with telephone calls) requesting such quarterly and annual
operating statements and rent rolls until they are received to the extent such
action is consistent with applicable law and the related Mortgage Loan
documents, and (ii) with respect to the Non-Serviced Mortgage Loans, a letter
sent to the related Non-Serviced Master Servicer to provide such information to
the extent required to be delivered pursuant to the related Intercreditor
Agreement.
The Special Servicer shall promptly, following receipt, deliver
copies of the operating statements and rent rolls received or obtained by it to
the Master Servicer, and the Master Servicer shall deliver copies of the
operating statements and rent rolls received or obtained by it to the Rating
Agencies, the Trustee, the Special Servicer or the Controlling Class
Representative in each case (other than the Rating Agencies and the Controlling
Class Representative which shall be sent copies within 30 days following the
Master Servicer's receipt) upon request.
Within 30 days after receipt by the Master Servicer (with respect to
any Mortgaged Property other than a REO Property) or the Special Servicer (with
respect to any REO Property) of any annual operating statements with respect to
any Mortgaged Property or REO Property, as applicable (other than, in each case,
the Mortgaged Property or REO Property related to the Non-Serviced Mortgage
Loan), each of the Master Servicer (with respect to any Mortgaged Property other
than a REO Property) and the Special Servicer (with respect to any REO Property)
shall prepare or update and, with respect to any CMSA NOI Adjustment Worksheet
prepared or updated by the Special Servicer, forward to the Master Servicer, a
CMSA NOI Adjustment Worksheet for such Mortgaged Property or REO Property (with
the annual operating statements attached thereto as an exhibit).
The Special Servicer with respect to each REO Loan, and the Master
Servicer with respect to each other Mortgage Loan (other than the Non-Serviced
Mortgage Loans), shall each prepare and maintain and forward to each other one
CMSA Operating Statement Analysis for each Mortgaged Property and REO Property,
as applicable; provided, however, with respect to the Non-Serviced Mortgage
Loans, the Master Servicer shall forward to each recipient of a CMSA Operating
Statement Analysis hereunder a copy of the CMSA Operating Statement Analysis
received from the Non-Serviced Master Servicer related to the Non-Serviced
Mortgage Loans. The CMSA Operating Statement Analysis for each Mortgaged
Property and REO Property is to be updated by each of the Master Servicer and
the Special Servicer, as applicable, within thirty days after its respective
receipt of updated operating statements for such Mortgaged Property and REO
Property, as the case may be, but in no event less frequently than annually by
June 30th of each year. The Master Servicer and the Special Servicer shall each
use the "Normalized" column from the CMSA NOI Adjustment Worksheet for any
Mortgaged Property or REO Property, as the case may be, to update the
corresponding CMSA Operating Statement Analysis and shall use any operating
statements received with respect to any Mortgaged Property or REO Property, as
the case may be, to prepare the CMSA NOI Adjustment Worksheet for such property.
Copies of CMSA Operating Statement Analyses and CMSA NOI Adjustment Worksheets
are to be made available by the Master Servicer to the Trustee, the Special
Servicer or the Controlling Class Representative in each case upon request.
(e) The Master Servicer shall, upon the reasonable request of
Artesia, deliver copies to Artesia (at their expense) of operating statements
and financial statements relating to the Artesia Mortgage Loans.
Section 3.13. Annual Reports on Assessment of Compliance with
Servicing Criteria and Annual Statement as to Compliance.
(a) On or before noon (Eastern Time) on March 5 (with a 7 Business
Day notice and cure period as provided in Section 7.01(a)(iv) herein but no
later than March 15) of each year, commencing in March 2008, the Master
Servicer, the Special Servicer and the Trustee, each at its own expense, shall
furnish, and the Master Servicer and Special Servicer shall cause each Servicing
Participant with which it has entered into a relationship with respect to the
Mortgage Loans to furnish and the Master Servicer shall cause each Additional
Servicer to furnish to the Trustee and the Depositor, with a copy to the Rating
Agencies and the Controlling Class Representative, a report on an assessment of
compliance with the Servicing Criteria that contains (i) a statement by such
Reporting Party of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (ii) a statement that such Reporting Party
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (iii) such Reporting Party'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
8.17, 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 (iv) a statement that a registered public
accounting firm has issued an attestation report on such Reporting Party's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period. Promptly after receipt of each such report, the Depositor may review
each such report and, if applicable, consult with the Trustee, the Master
Servicer and the Special Servicer as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by the Trustee, the Master
Servicer, the Special Servicer or any Servicing Participant with which it has
entered into a servicing relationship with respect to the Mortgage Loans.
Neither the Master Servicer nor the Special Servicer shall be required to cause
the delivery of any such statements until April 15 in any given year so long as
it has received written confirmation from the Depositor that a Report on Form
10-K is not required to be filed in respect of the Trust Fund for the preceding
calendar year.
Each such report shall be addressed to the Depositor and signed by
an authorized officer of the applicable company, and shall address each of the
Relevant Servicing Criteria specified on a certification substantially in the
form of Exhibit S hereto delivered to the Depositor on the Closing Date.
Promptly after receipt of each such report, (i) the Depositor may review each
such report and, if applicable, consult with the Master Servicer, the Special
Servicer and/or the Trustee as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria (and each Sub-Servicer or
Servicing Participant engaged or utilized by the Master Servicer, the Special
Servicer or the Trustee, as applicable), and (ii) the Trustee shall confirm that
the assessments taken individually address the Relevant Servicing Criteria as
set forth on Exhibit S and notify the Depositor of any exceptions. To the extent
the Trustee has actual knowledge of a deficiency in the reporting of the
Relevant Servicing Criteria (whether individually with respect to the Relevant
Servicing Criteria, or in the aggregate with respect to the Servicing Criteria
taken as a whole), the Trustee shall promptly notify in accordance with the last
paragraph of Section 8.17(n) the Depositor and whichever of the Master Servicer
or the Special Servicer failed to provide the Relevant Servicing Criteria.
No later than the end of each fiscal year for the Trust Fund, the
Master Servicer and the Special Servicer shall notify the Trustee, the Master
Servicer or the Special Servicer, as applicable, and the Depositor as to the
name of each Sub-Servicer engaged by it and each Servicing Participant utilized
by it, and the Trustee shall notify the Depositor as to the name of each
Servicing Participant utilized by it, and each such notice will specify which
Relevant Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Participant and/or Sub-Servicer. When the
Master Servicer, the Special Servicer and the Trustee submit their assessments
pursuant to Section 3.13(a), the Master Servicer, the Special Servicer and the
Trustee, as applicable, will also at such time include the assessment (and
related attestation pursuant to Section 3.14) of each Servicing Participant
and/or Sub-Servicer engaged by it.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and each such party shall cause any Servicing Participant
engaged by it or formerly engaged by it to provide, and the Master Servicer
shall use its reasonable efforts to cause any Additional Servicer that resigns
or is terminated under any applicable servicing agreement to provide, an annual
assessment of compliance pursuant to this Section 3.13, coupled with an
attestation as required in Section 8.17 with respect to the period of time that
the Master Servicer, the Special Servicer or the Trustee was subject to this
Agreement or the period of time that the Additional Servicer was subject to such
other servicing agreement.
(b) The Trustee, the Master Servicer and the Special Servicer shall,
and the Master Servicer (or, in the case of the Master Servicer with respect to
the Sub-Servicers identified on Exhibit Y hereto, shall use reasonable efforts
to cause) and Special Servicer shall cause each Servicing Participant with which
it has entered into a relationship with respect to the Mortgage Loans, to
deliver to the Depositor and the Trustee on or before March 5 (with a 7 Business
Day notice and cure period as provided in Section 7.01(a)(iv) herein but no
later than March 15) of each year, commencing in March 2008, an Officer's
Certificate stating, as to the Trustee, the Master Servicer, the Special
Servicer or the Additional Servicer, as applicable, that (i) a review of such
entity's activities during the preceding calendar year or portion thereof and of
such entity's performance under this Agreement, or the applicable servicing
agreement in the case of any Additional Servicer, has been made under such
officer's supervision and (ii) to the best of such officer's knowledge, based on
such review, such entity has fulfilled all its obligations under this Agreement,
or the applicable Sub-Servicing Agreement or primary servicing agreement in the
case of any 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. The Trustee, the Master Servicer and
the Special Servicer shall, and the Master Servicer (or, in the case of the
Master Servicer with respect to the Sub-Servicers identified on Exhibit Y
hereto, shall use reasonable efforts to cause) and the Special Servicer shall
cause each Additional Servicer with which it has entered into a servicing
relationship with respect to the Mortgage Loans to, forward, or make available a
copy of each such statement to the Rating Agencies and the Controlling Class
Representative. Promptly after receipt of each such Officer's Certificate, the
Depositor may review such Officer's Certificate and, if applicable, consult with
the Trustee, the Master Servicer or the Special Servicer, as applicable, as to
the nature of any failures by the Trustee, the Master Servicer or the Special
Servicer, respectively, or any related any Additional Servicer with which the
Master Servicer or the Special Servicer, as applicable, has entered into a
servicing relationship with respect to the Mortgage Loans in the fulfillment of
any of the Master Servicer's or Special Servicer's obligations hereunder or
under the applicable servicing agreement.
The obligations of the Master Servicer, the Special Servicer, the
Trustee and each Additional Servicer under this Section apply to the Master
Servicer, the Special Servicer, the Trustee and each Additional Servicer that
serviced a Mortgage Loan during the applicable period, whether or not the Master
Servicer, the Special Servicer, the Trustee or Additional Servicer is acting as
the Master Servicer, the Special Servicer, the Trustee or Additional Servicer at
the time such Officer's Certificate is required to be delivered.
In the event the Master Servicer, the Special Servicer or the
Trustee is terminated or resigns pursuant to the terms of this Agreement, such
party shall provide, and the Master Servicer shall use its reasonable efforts to
cause any Additional Servicer that resigns or is terminated under any applicable
servicing agreement to provide, an annual statement of compliance pursuant to
this Section 3.13 with respect to the period of time that the Master Servicer,
the Special Servicer or the Trustee was subject to this Agreement or the period
of time that the Additional Servicer was subject to such other servicing
agreement.
Section 3.14. Attestation by Independent Public Accountants.
On or before noon (Eastern Time) on March 5 (with a 7 Business Day
notice and cure period as provided in Section 7.01(a)(iv) herein but no later
than March 15) of each year, commencing in March 2008, the Master Servicer, the
Special Servicer and the Trustee, each at its own expense, shall cause, and the
Master Servicer (or, in the case of the Master Servicer with respect to the
Sub-Servicers identified on Exhibit Y hereto, shall use reasonable efforts to
cause), the Special Servicer and the Trustee shall cause each Servicing
Participant with which it has entered into a relationship with respect to the
Mortgage Loans to cause, and the Master Servicer shall cause each Additional
Servicer to cause, a registered public accounting firm (which may also render
other services to the Master Servicer, the Special Servicer, the Trustee or the
applicable Servicing 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, with a copy to the Rating Agencies and the
Controlling Class Representative, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such Reporting
Party, which includes an assertion that such Reporting Party has complied 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 Public Company Accounting Oversight Board, attests to
and reports on such Reporting Party's assessment of compliance with the Relevant
Servicing Criteria. In the event that an overall opinion cannot be expressed,
such registered public accounting firm shall state in such report why it was
unable to express such an opinion. Each such related accountant's attestation
report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act. Such report must
be available for general use and not contain restricted use language. Promptly
after receipt of such report from the Trustee, the Master Servicer, the Special
Servicer or any Servicing Participant, the Depositor may review the report and,
if applicable, consult with the Trustee, the Master Servicer or the Special
Servicer as to the nature of any defaults by the Trustee, the Master Servicer,
the Special Servicer or any Servicing Participant with which it has entered into
a servicing relationship with respect to the Mortgage Loans, as the case may be,
in the fulfillment of any of the Trustee's, the Master Servicer's, the Special
Servicer's or the applicable Servicing Participant's obligations hereunder or
under the applicable servicing agreement. The Trustee, the Master Servicer and
the Special Servicer shall not be required 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 Report on Form 10-K is not required to be filed in
respect of the Trust Fund for the preceding calendar year. The Trustee shall
confirm that each accountants' attestation report submitted pursuant to this
Section relates to an assessment of compliance that on its face meets the
requirements of Section 3.13(a) and notify the Depositor of any exceptions.
Section 3.15. Access to Certain Information.
(a) Upon reasonable prior written notice, not required to be greater
than ten days, the Master Servicer (with respect to the items in clauses (a),
(b) (other than Distribution Date Statements), (c), (d), (e), (f), (h) and (i)
below, unless such item was not delivered to the Master Servicer), the Special
Servicer (with respect to the items in clauses (c), (d), (g), (h) and (i) below)
to the extent such items are in its possession and the Trustee (with respect to
the items in clauses (b) and (i) below and any other items, to the extent in its
possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of the
Trustee, at its Corporate Trust Office, except with respect to documents which
constitute part of the Mortgage Files, which will be maintained at its offices
in Minnesota), during normal business hours, or send to the requesting party,
such party having been certified to the Trustee, the Master Servicer or the
Special Servicer, as applicable, in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any Person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master Servicer or
the Special Servicer, as the case may be, as a prospective transferee of any
Certificate or interest therein or a Companion Loan or any interest therein (to
the extent such information is related to such Companion Loan or the related
Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any
applicable regulator or potential purchaser specified thereby and the Depositor,
originals or copies of the following items: (a) this Agreement and any
amendments thereto, (b) all Distribution Date Statements delivered to holders of
the relevant Class of Certificates since the Closing Date and all reports,
statements and analyses delivered by the Master Servicer since the Closing Date
pursuant to Section 3.12(c), (c) all Officer's Certificates delivered by the
Master Servicer or the Special Servicer since the Closing Date pursuant to
Section 3.13, (d) all accountants' reports delivered to the Master Servicer in
respect of itself or the Special Servicer since the Closing Date as described in
Section 3.14, (e) the most recent property inspection report prepared by or on
behalf of the Master Servicer in respect of each Mortgaged Property and any
Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent
Mortgaged Property annual operating statements and rent roll, if any, collected
by or on behalf of the Master Servicer, (g) any and all modifications, waivers
and amendments of the terms of a Mortgage Loan entered into by the Special
Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h)
the Servicing File relating to each Mortgage Loan and (i) any and all Officer's
Certificates and other evidence delivered by the Master Servicer or the Special
Servicer, as the case may be, to support its determination that any Advance was,
or if made, would be, a Nonrecoverable Advance pursuant to Sections 3.03(e) or
4.03(c), including appraisals affixed thereto and any Required Appraisal
prepared pursuant to Section 3.09(a); provided, however, that none of the Master
Servicer, Special Servicer or Trustee shall be obligated to release any
information that is subject to attorney client, work product or other
confidentiality agreement or protections, unless otherwise required to be
delivered in accordance with any applicable Intercreditor Agreement. Copies of
any and all of the foregoing items will be available from the Master Servicer,
the Special Servicer or the Trustee, as the case may be, upon request and shall
be provided to any of the Rating Agencies at no cost pursuant to their
reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative, in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee,
the Master Servicer or the Special Servicer, as applicable, shall require: (a)
in the case of Certificate Owners and the Controlling Class Representative, a
confirmation (which in the case of the Controlling Class Representative may be a
standing confirmation) executed by the requesting Person substantially in the
form of Exhibit K-1 hereto (or such other form as may be reasonably acceptable
to the Trustee, the Master Servicer or the Special Servicer, as applicable)
generally to the effect that such Person is a beneficial holder of Book-Entry
Certificates, or a representative of a beneficial holder of Book-Entry
Certificates, and, subject to the last sentence of this paragraph, will keep
such information confidential (except that such Certificate Owner and the
Controlling Class Representative may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein; provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit K-2 hereto (or such other form as
may be reasonably acceptable to the Trustee, the Master Servicer or the Special
Servicer, as applicable) generally to the effect that such Person is a
prospective purchaser of a Certificate or an interest therein, is requesting the
information for use in evaluating a possible investment in Certificates and,
subject to the last sentence of this paragraph, will otherwise keep such
information confidential. The Holders of the Certificates, by their acceptance
thereof, and the Controlling Class Representative, by its acceptance of its
appointment, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein; provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential) and agrees
not to use such information in any manner that would violate federal, state or
local securities laws. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner shall be
obligated to keep confidential any information received from the Trustee, the
Master Servicer or the Special Servicer, as applicable, pursuant to this Section
3.15 that has previously been made available via the Trustee's, the Master
Servicer's or Special Servicer's Internet Website without restriction as to
access as permitted pursuant to the terms of this Agreement, as applicable, or
has previously been filed with the Commission, and the Trustee, the Master
Servicer or the Special Servicer, as applicable, shall not require either of the
certifications contemplated by the second preceding sentence in connection with
providing any information pursuant to this Section 3.15 that has previously been
made available via the Trustee's, the Master Servicer's or Special Servicer's
Internet Website without restriction as to access in compliance with the terms
of this Agreement, as applicable, or has previously been filed with the
Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder or a Companion
Loan or any interest therein (to the extent such information is related to such
Companion Loan or the related Mortgage Loan), access to any records regarding
the Mortgage Loans and the servicing thereof within its control, except to the
extent it is prohibited from doing so by applicable law or contract or to the
extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders or the Companion Holders. Such
access shall be afforded only upon reasonable prior written request and during
normal business hours at the offices of the Master Servicer or the Special
Servicer, as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
or holder of a Companion Loan, as applicable, of a sum sufficient to cover the
reasonable costs and expenses of providing any such information or access
pursuant to this Section 3.15 to, or at the request of, the Certificateholders
or Certificate Owners or prospective transferees or holder of a Companion Loan,
as applicable, including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners or holder of a Companion Loan, if
applicable, requiring on site review in excess of 3 Business Days, reasonable
fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may, but is not
required to, make available on or prior to the Distribution Date in each month
to the general public (i) the Distribution Date Statement via their respective
Internet Websites, (ii) as a convenience for the general public, the Prospectus
Supplement, the Prospectus and this Agreement on their respective Internet
Websites and (iii) any other items at the request of the Depositor via their
respective Internet Websites. In addition, the Trustee shall make available each
month, on each Distribution Date, the Unrestricted Servicer Reports, the CMSA
Loan Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File and the
CMSA Collateral Summary File to the general public on its Internet Website (on a
password protected basis). The Trustee shall, upon written request, make
available each month, on each Distribution Date, (i) the Restricted Servicer
Reports, and (ii) the CMSA Property File and the CMSA Financial File to any
Privileged Person and to any other Person upon the direction of the Depositor.
The Master Servicer may, but is not required to, make available each
month via its Internet Website (i) to any interested party, the Unrestricted
Servicer Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update
File, and (ii) to any Privileged Person, with the use of a password provided by
the Master Servicer, the Restricted Servicer Reports, the CMSA Financial File
and the CMSA Property File. Any Restricted Servicer Report or Unrestricted
Servicer Report that is not available on the Master Servicer's Internet Website
as described in the immediately preceding sentence by 5:00 p.m. (New York City
time) on the related Distribution Date shall be provided (in electronic format,
or if electronic mail is unavailable, by facsimile) by the Master Servicer, upon
request, to any Person otherwise entitled to access such report on the Master
Servicer's Internet Website.
In connection with providing access to the Trustee's Internet
Website or the Master Servicer's Internet Website, the Trustee or the Master
Servicer, as applicable, may require registration and the acceptance of a
disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to Trustee,
and such application states that the Applicants' desire to communicate with
other Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within 5 Business Days
after the receipt of such application, send, at the Applicants' expense, the
written communication proffered by the Applicants to all Certificateholders at
their addresses as they appear in the Certificate Register.
(c) The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. Neither the Master
Servicer nor the Trustee shall be liable for the dissemination of information in
accordance with this Section 3.15(c). The Trustee makes no representations or
warranties as to the accuracy or completeness of any report, document or other
information made available on the Trustee's Website and assumes no
responsibility therefor. In addition, the Trustee, the Master Servicer and the
Special Servicer may disclaim responsibility for any information distributed by
the Trustee, the Master Servicer or the Special Servicer, respectively, for
which it is not the original source.
(d) Upon the request of the Controlling Class Representative made
not more frequently than once a month (which request may be a standing,
continuing request), or at such mutually acceptable time each month as the
Controlling Class Representative shall reasonably designate, each of the Master
Servicer and Special Servicer shall, without charge, make a knowledgeable
Servicing Officer available, at the option of the Controlling Class
Representative either by telephone or at the office of such Servicing Officer,
to answer questions from the Controlling Class Representative regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
such Master Servicer or Special Servicer, as the case may be, is responsible.
The Master Servicer and the Special Servicer each shall condition such
disclosure upon the Controlling Class Representative entering into a reasonable
and customary confidentiality agreement reasonably acceptable to such servicer
and the Controlling Class Representative regarding such disclosure to it.
Neither the Master Servicer nor the Special Servicer shall be required to
provide any information or disclosures in violation of any applicable law, rule
or regulation.
(e) With respect to any Companion Loan, the Companion Holders shall
receive and have access to any information described in this Section 3.15 which
such Companion Holder is entitled to pursuant to the related Intercreditor
Agreement.
Section 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, if applicable, the Companion Holder, as their
interests shall appear. For the avoidance of doubt, REO Properties with respect
to the Non-Serviced Mortgage Loans are excluded for all purposes from this
Section 3.16. The Special Servicer, on behalf of the Trust Fund, shall sell any
such REO Property as soon as practicable in accordance with the Servicing
Standard, but prior to the end of the third year following the calendar year in
which REMIC I acquires ownership of such REO Property (or applicable portion
thereof) for purposes of Section 860G(a)(8) of the Code, unless the Special
Servicer either (i) applies for, more than 60 days prior to the end of such
third succeeding year, and 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 an Opinion of Counsel, addressed to the Trustee, the Special
Servicer and the Master Servicer, to the effect that the holding by REMIC I of
such REO Property subsequent to the end of such third succeeding year will not
result in the imposition of taxes on "prohibited transactions" (as defined in
Section 860F of the Code) of either of REMIC I or REMIC II or cause either of
REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
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 extended 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 obtaining 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 first be
payable from the related REO Account to the extent of available funds and then
be a Servicing Advance by the Master Servicer. In the case of the Trust Fund's
beneficial interest in the Mortgaged Property acquired by the related
Non-Serviced Trustee pursuant to the related Non-Serviced Pooling and Servicing
Agreement, the Special Servicer shall coordinate with the related Non-Serviced
Special Servicer with respect to any REO Extension on behalf of REMIC I. Except
for the preceding sentence, for purposes of this Section 3.16, "REO Property"
does not include the Trust Fund's beneficial interest in the Mortgaged Property
securing the Non-Serviced Mortgage Loans.
(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 accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders and, if applicable, the Companion Holder,
as their interests shall appear, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds (net of Liquidation Expenses) received in respect of an REO Property
within 2 Business Days of receipt. Funds in the REO Account may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from the REO Account to pay itself, as
additional servicing compensation in accordance with Section 3.11(d), interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the REO Account for any Collection Period). The Special
Servicer shall give written notice to the Trustee and the Master Servicer of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property (including any monthly reserve or escrow
amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On the last day of
the related Collection Period, the Special Servicer shall withdraw from the REO
Account and deposit into the Certificate Account or deliver to the Master
Servicer or such other Person as may be directed by the Master Servicer (which
shall deposit such amounts into the Certificate Account) the aggregate of all
amounts received in respect of each REO Property during the most recently ended
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that in addition to the Impound Reserve, the
Special Servicer may retain in the REO Account such portion of proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management and maintenance of the related REO Property
(including, without limitation, the creation of a reasonable reserve for
repairs, replacements and other related expenses).
(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, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to the REO Account as is reasonably requested by the Master Servicer.
Section 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property (other
than the Mortgaged Properties relating to the Non-Serviced Mortgage
Loans), the Special Servicer shall review the operation of such Mortgaged
Property and determine the nature of the income that would be derived from
such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review in compliance with the Servicing
Standard that in its good faith and reasonable judgment:
(i) None of the income from Directly Operating such REO Property
would be subject to tax as "net income from foreclosure property" within
the meaning of the REMIC Provisions (such tax referred to herein as an
"REO Tax"), and the Special Servicer does not engage in any of the
activities described in the definition of "Directly Operate" that would
cause the REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided that in the good faith and reasonable
judgment of the Special Servicer, such alternative is commercially
feasible and would result in a greater net recovery on a present value
basis than earning income subject to an REO Tax) acquire such Mortgaged
Property as REO Property and so lease or manage such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that such method of operation is commercially feasible and would result in
a greater net recovery on a present value basis than leasing or other
method of operating the REO Property that would not incur an REO Tax, the
Special Servicer shall deliver to the REMIC Administrator, in writing, a
proposed plan (the "Proposed Plan") to manage such property as REO
Property. Such plan shall include potential sources of income, and to the
extent commercially feasible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of such
plan, the REMIC Administrator shall consult with the Special Servicer and
shall advise the Special Servicer of the REMIC Administrator's federal
income tax reporting position with respect to the various sources of
income that the Trust Fund would derive under the Proposed Plan. In
addition, the REMIC Administrator shall (to the extent reasonably
possible) advise the Special Servicer of the estimated amount of taxes
that the Trust Fund would be required to pay with respect to each such
source of income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage such property
in a manner that would not result in the imposition of an REO Tax on the
income derived from such property. All of the REMIC Administrator's
expenses (including any fees and expenses of counsel or other experts
reasonably retained by it) incurred pursuant to this Section shall be
reimbursed to it from the Trust Fund in accordance with Section 10.01(e).
The Special Servicer's decision as to how each REO Property shall be
managed shall be based on the Servicing Standard and in any case on the good
faith and reasonable judgment of the Special Servicer as to which means would be
in the best interest of the Certificateholders (or, if the REO Property was
formerly a Mortgaged Property securing a Co-Lender Loan, the Certificateholders
and the related Companion Holder (as a collective whole in accordance with the
Servicing Standard, taking into account the subordinate nature of the Companion
Loan, if applicable)) by maximizing (to the extent commercially feasible and
consistent with Section 3.17(b)) the net after-tax REO Revenues received by the
Trust Fund with respect to such property and, to the extent consistent with the
foregoing, in the same manner as would prudent mortgage loan servicers operating
acquired mortgaged property comparable to the respective Mortgaged Property.
Both the Special Servicer and the REMIC Administrator may, at the expense of the
Trust Fund payable pursuant to Section 3.05(a)(xv), consult with counsel.
(b) If title to any REO Property (other than the REO Properties
relating to the Non-Serviced Mortgage Loans) is acquired, the Special Servicer
shall manage, conserve and protect such REO Property for the benefit of the
Certificateholders (or, if the REO Property was formerly a Mortgaged Property
securing a Co-Lender Loan, the Certificateholders and the related Companion
Holder (as a collective whole in accordance with the Servicing Standard, taking
into account the subordinate nature of the Companion Loan, if applicable))
solely for the purpose of its prompt disposition and sale in a manner that does
not and will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or either result
in the receipt by REMIC I 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
consistent with the Servicing Standard and, consistent therewith, shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to any such REO Property, funds necessary for the proper management, 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; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage and restore 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 the preceding
sentence with respect to such REO Property, the Master Servicer, subject to the
second paragraph of Section 3.03(c), shall make Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee) the Master Servicer would not make such
advances if the Master Servicer owned such REO Property or the Master Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, the Master Servicer may make any
such Servicing Advance without regard to recoverability if it is a necessary fee
or expense incurred in connection with the defense or prosecution of legal
proceedings.
(c) Unless Section 3.17(a)(i) applies, the Special Servicer shall
contract with any Independent Contractor (if required by the REMIC Provisions
for the REO Property to remain classified as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code) for the operation and management of
any REO Property; 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
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
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. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
(d) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property (other than the REO Properties
relating to the Non-Serviced Mortgage Loans), 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 REO Properties relating to the Non-Serviced Mortgage
Loans), other than the repair or maintenance thereof or the completion of
a building or other improvement thereon, to the extent provided in Section
856(e)(4)(B) of the Code; or
(iv) except as otherwise provided for in Section 3.17(a)(i) and
(a)(ii) above, Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property (other than
the REO Properties relating to the Non-Serviced Mortgage Loans) on any
date more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance unless nonrecoverable, in which case it shall be paid by the Master
Servicer as an Additional Trust Fund Expense from amounts on deposit in the
Certificate Account) 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. Except as limited above in this Section 3.17 and by this
Section 3.17(d), the Special Servicer shall be permitted to cause the Trust Fund
to earn "net income from foreclosure property", subject to the Servicing
Standard.
Section 3.18. Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan (other than
the Non-Serviced Mortgage Loans) or an REO Property (other than an REO Property
relating to the Non-Serviced Mortgage Loans) 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 Sections 2.03 and 9.01.
(b) Within 60 days after a Mortgage Loan (other than the
Non-Serviced Mortgage Loan) becomes a Defaulted Mortgage Loan, the Special
Servicer shall determine the fair value of such Mortgage Loan in accordance with
the Servicing Standard; provided, however, such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided, further, the Special Servicer shall use reasonable efforts to
obtain an Appraisal with respect to the related Mortgaged Property unless it has
an Appraisal that is less than 12 months old and has no actual knowledge of, or
notice of, any event which in the Special Servicer's judgment would materially
affect the validity of such Appraisal. The Special Servicer shall make its fair
value determination as soon as reasonably practicable (but in any event within
30 days) after its receipt of such new Appraisal, if applicable. The Special
Servicer is permitted to change, from time to time, 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; provided,
however, the Special Servicer shall update its determination of the fair value
at least once every 90 days. The Special Servicer shall notify the Trustee, the
Master Servicer, each Rating Agency and the Majority Subordinate
Certificateholder promptly upon its fair value determination and any adjustment
thereto. 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, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to all other relevant
information obtained by it or otherwise contained in the Mortgage Loan File;
provided that the Special Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Special
Servicer that has occurred subsequent to, and that would, in the Special
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in the most recent related Appraisal. Furthermore,
the Special Servicer shall consider all available objective third-party
information obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located. The Special Servicer may conclusively rely on the opinion
and reports of Independent third parties in making such determination.
(c) Subject to the terms set forth in Section 2.03, in the event a
Mortgage Loan (other than the Non-Serviced Mortgage Loan) becomes a Defaulted
Mortgage Loan, each of the Majority Subordinate Certificateholder and the
Special Servicer shall have an assignable option (a "Purchase Option") to
purchase such Defaulted Mortgage Loan from the Trust Fund at a price (the
"Option Price") equal to (i) the Purchase Price, if the Special Servicer has not
yet determined the fair value of the Defaulted Mortgage Loan, or (ii) the fair
value of the Defaulted Mortgage Loan as determined by the Special Servicer in
the manner described in Section 3.18(b) and in accordance with the Servicing
Standard, if the Special Servicer has made such fair value determination. Any
holder of a Purchase Option may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party other
than the related Mortgagor or an Affiliate of the related Mortgagor under the
Mortgage Loan at any time after the related Mortgage Loan becomes a Defaulted
Mortgage Loan. The transferor of any Purchase Option shall notify the Trustee
and the Master Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and appropriate
contact person(s) and shall be acknowledged in writing by the transferee at
least five (5) Business Days in advance of such intended transfer.
Notwithstanding the foregoing, and subject to Section 3.18(d) of this Agreement,
the Majority Subordinate Certificateholder shall have the right to exercise its
Purchase Option prior to any exercise of the Purchase Option by any other holder
of a Purchase Option; provided, however, if the Purchase Option is not exercised
by the Majority Subordinate Certificateholder or any assignee thereof within 60
days of a Mortgage Loan (other than the Non-Serviced Mortgage Loans) becoming a
Defaulted Mortgage Loan, then the Special Servicer shall have the right to
exercise its Purchase Option prior to any exercise by the Majority Subordinate
Certificateholder and the Special Servicer or its assignee may exercise such
Purchase Option at any time during the fifteen day period immediately following
the expiration of such 60-day period. Following the expiration of such fifteen
day period, the Majority Subordinate Certificateholder shall again have the
right to exercise its Purchase Option prior to any exercise of the Purchase
Option by the Special Servicer. If not exercised earlier, the Purchase Option
with respect to any Defaulted Mortgage Loan will automatically terminate (i)
once the related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, if such Mortgage Loan subsequently becomes a Defaulted
Mortgage Loan, the related Purchase Option shall again be exercisable, (ii) upon
the acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed in lieu of foreclosure or (iii)
the modification or pay-off, in full or at a discount, of such Defaulted
Mortgage Loan in connection with a workout.
(d) Notwithstanding the provisions of Section 3.18(c), Section
3.18(g) or Section 3.18(h), pursuant to the terms of the Intercreditor
Agreements, a Companion Holder will have the right to purchase the related
Co-Lender Loan or related REO Property (other than, an REO Property relating to
the Non-Serviced Mortgage Loans) in certain circumstances. Such right of the
related Companion Holder shall have priority over any provision described in
Section 3.18(c), Section 3.18(g) or Section 3.18(h). If the Co-Lender Loan or
REO Property (other than an REO Property relating to the Non-Serviced Mortgage
Loans) is purchased by the related Companion Holder, repurchased by the
applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Companion Loan will no longer be subject to this
Agreement. Neither the Trustee nor the Trust Fund shall acquire a Companion
Loan; provided, however, the Master Servicer or an affiliate may own or acquire
the Companion Loans. With respect to each Loan Pair, the related Companion
Holder shall be entitled to exercise any cure rights given to it under the
related Intercreditor Agreement, in each case subject to any conditions or
restrictions described in or incorporated by reference into such sections.
(e) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan (other than the Non-Serviced Mortgage Loans) has become a
Defaulted Mortgage Loan, the holder (whether the original grantee of such option
or any subsequent transferee) of the Purchase Option may exercise the Purchase
Option by providing the Master Servicer and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit M, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire the
related Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price.
(f) If the Special Servicer or the Majority Subordinate
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, the Trustee shall determine as soon as reasonably practicable (and, in any
event, within 30 days) after the Trustee has received the written notice,
whether the Option Price represents fair value for the Defaulted Mortgage Loan;
provided that if the Special Servicer is then in the process of obtaining a new
Appraisal with respect to the related Mortgaged Property, then the Trustee
shall, in accordance with its good faith and reasonable judgment, make its fair
value determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within 30 days) after the Trustee's receipt of
such new Appraisal. The Trustee may rely on the opinion and reports of
Independent third parties in making such determination; provided that the
Trustee may rely on the most current Appraisal obtained for the related
Mortgaged Property pursuant to this Agreement. In determining the fair value of
any Defaulted Mortgage Loan, the Trustee shall take into account, and any
Independent third party shall be instructed to 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,
and the time and expense associated with a purchaser's foreclosing on the
related Mortgaged Property. In addition, the Trustee shall refer, and any
Independent third party shall be instructed to refer, to all relevant
information delivered to it by the Special Servicer or otherwise contained in
the Mortgage Loan File. Furthermore, the Trustee shall consider, and any
Independent third party shall be instructed to consider, all available objective
third-party information obtained from generally available sources, concerning
the market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The reasonable costs of all appraisals, inspection reports and broker
opinions of value, reasonably incurred by the Trustee or any such third party
pursuant to this subsection shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances (or if such Advance is
deemed to be a Nonrecoverable Advance such costs shall be reimbursable as
Additional Trust Fund Expenses from the Certificate Account pursuant to Section
3.05(a)). The other parties to this Agreement shall cooperate with all
reasonable requests for information.
(g) Unless and until the Purchase Option with respect to a Defaulted
Mortgage Loan is exercised, the Special Servicer shall pursue such other
resolution strategies available hereunder with respect to such Defaulted
Mortgage Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate consistent with the Servicing Standard;
provided, however, the Special Servicer will not be permitted to sell the
Defaulted Mortgage Loan other than in connection with the exercise of the
related Purchase Option.
(h) In the event that title to any REO Property (other than the REO
Properties relating to the Non-Serviced Mortgage Loans) is acquired by the Trust
Fund in respect of any Defaulted Mortgage Loan, the deed or certificate of sale
shall be issued to the Trust Fund, the Trustee or to its nominees. The Special
Servicer, after notice to the Controlling Class Representative, shall use its
reasonable best efforts to sell any such REO Property as soon as practicable in
accordance with Section 3.16(a). If the Special Servicer on behalf of the
Trustee has not received an REO Extension or an Opinion of Counsel described in
Section 3.16(a) and the Special Servicer is not able to sell such REO Property
within the period specified above, or if an REO Extension has been granted and
the Special Servicer is unable to sell such REO Property within the extended
time period, the Special Servicer shall, after consultation with the Controlling
Class Representative, before the end of such period or extended period, as the
case may be, auction the REO Property to the highest bidder (which may be the
Special Servicer) in accordance with the Servicing Standard. The Special
Servicer shall give the Controlling Class Representative, the Master Servicer
and the Trustee not less than 5 days' prior written notice of its intention to
sell any REO Property, and in respect of such sale, the Special Servicer shall
offer such REO Property in a commercially reasonable manner. Where any
Interested Person is among those bidding with respect to an REO Property, the
Special Servicer shall require that all bids be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the bid
amount. No Interested Person shall be permitted to purchase the REO Property at
a price less than the Purchase Price; provided, further, if the Special Servicer
intends to bid on any REO Property, (i) the Special Servicer shall notify the
Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense
of the Trust Fund, an Appraisal of such REO Property and (iii) the Special
Servicer shall not bid less than the greater of (a) the fair market value set
forth in such Appraisal or (b) the Purchase Price.
(i) Subject to the REMIC Provisions, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action necessary
or appropriate in connection with the sale of any REO Property (other than the
REO Properties relating to the Non-Serviced Mortgage Loans) or the exercise of a
Purchase Option, including the collection of all amounts payable in connection
therewith. 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 (other than the REO Properties relating to the Non-Serviced
Mortgage Loans) or purchase any Defaulted Mortgage Loan. Any sale of a Defaulted
Mortgage Loan (pursuant to a Purchase Option) or an REO Property shall be
without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, any Mortgage Loan Seller
or the Trust Fund. Notwithstanding the foregoing, nothing herein shall limit the
liability of the Master Servicer, the Special Servicer or the Trustee to the
Trust Fund and the Certificateholders for failure to perform its duties in
accordance herewith. None of the Special Servicer, the Master Servicer, the
Depositor or the Trustee shall have any liability to the Trust Fund or any
Certificateholder with respect to the price at which a Defaulted Mortgage Loan
is sold if the sale is consummated in accordance with the terms of this
Agreement.
(j) Upon exercise of a Purchase Option, the holder of such Purchase
Option shall be required to pay the purchase price specified in its Purchase
Option Notice to the Special Servicer within 10 Business Days of exercising its
Purchase Option. The proceeds of any sale of a Defaulted Mortgage Loan, after
deduction of the expenses of such sale incurred in connection therewith, shall
be remitted by the Special Servicer to the Master Servicer within 1 Business Day
of receipt for deposit into the Certificate Account. The Special Servicer shall
immediately notify the Trustee upon the holder of the effective Purchase
Option's failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this Section 3.18(j). Thereafter, the Special Servicer shall
notify each holder of a Purchase Option of such failure and such holder of a
Purchase Option may then exercise its Purchase Option in accordance with this
Section 3.18.
(k) Notwithstanding anything herein to the contrary, the Special
Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(l) The amount paid for a Defaulted Mortgage Loan (other than the
Non-Serviced Mortgage Loans) or related REO Property (other than an REO Property
relating to the Non-Serviced Mortgage Loans) purchased under this Agreement
shall be deposited into the Certificate Account, or if applicable, applied in
accordance with the related Intercreditor Agreement (except that portion of any
purchase price constituting Gain-on-Sale Proceeds which shall be deposited in
the Gain-on-Sale Reserve Account). Upon receipt of an Officer's Certificate from
the Master Servicer to the effect that such deposit has been made, the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the purchaser of such Defaulted Mortgage Loan or related REO Property
ownership of the Defaulted Mortgage Loan or related REO Property. The Custodian,
upon receipt of a Request for Release, shall release or cause to be released to
the Master Servicer or Special Servicer the related Mortgage File. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the purchaser of a Defaulted Mortgage Loan or related REO Property.
(m) Notwithstanding the foregoing, each mezzanine lender will have
the right to purchase the related Mortgage Loan and cure defaults relating
thereto as set forth in the related mezzanine intercreditor agreement.
Section 3.19. Additional Obligations of Master Servicer and Special
Servicer.
(a) The Master Servicer shall deposit in the Certificate Account on
each P&I Advance Date, without any right of reimbursement therefor with respect
to each Mortgage Loan (other than a Specially Serviced Mortgage Loan and other
than any Mortgage Loan for which the Special Servicer has waived a prepayment
restriction) that was subject to a voluntary Principal Prepayment during the
most recently ended Collection Period creating a Prepayment Interest Shortfall,
an amount equal to the lesser of (i) the amount of the related Prepayment
Interest Shortfall and (ii) the sum of (A) the Master Servicing Fee (calculated
for this purpose only at a rate of 0.0100% per annum) received by the Master
Servicer during such Collection Period on such Mortgage Loan and (B) investment
income earned by the Master Servicer on the related Principal Prepayment during
the most recently ended Collection Period; provided, however, to the extent any
such Prepayment Interest Shortfall is the result of the Master Servicer's
failure to enforce the applicable Mortgage Loan documents the amount in clause
(A) shall include the entire Master Servicing Fee on the applicable Mortgage
Loan for such Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor in writing of the transfer of such Mortgage Loan to the Trust Fund
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Master Servicer.
(c) The Master Servicer shall provide to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related Intercreditor Agreement.
Section 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(n) below and further
subject to Sections 3.08(b) and 6.11 and further subject to any applicable
intercreditor agreement or similar agreement, the Master Servicer (to the extent
provided in Section 3.02(a) and Section 3.20(i) below) and the Special Servicer
may, on behalf of the Trustee, agree to any modification, waiver or amendment of
any term of any Mortgage Loan (including, subject to Section 3.20(i), the lease
reviews and lease consents related thereto) without the consent of the Trustee
or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
(other than the Non-Serviced Mortgage Loans) (including, subject to Section
3.20(i), the lease reviews and lease consents related thereto) shall be in
writing and shall be considered and effected in accordance with the Servicing
Standard; provided, however, neither the Master Servicer nor the Special
Servicer, as applicable, shall make or permit or consent to, as applicable, any
modification, waiver or amendment of any term of any Mortgage Loan not otherwise
permitted by this Section 3.20 that would constitute a "significant
modification" of such Mortgage Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and amounts payable as
additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released other than in connection with a taking of all or part of
the related Mortgaged Property or REO Property for not less than fair
market value by exercise of the power of eminent domain or condemnation or
casualty or hazard losses with respect to such Mortgaged Property or REO
Property;
(iv) if such Mortgage Loan is equal to or in excess of 5% of the
then aggregate current principal balances of all Mortgage Loans or
$35,000,000 (or, with respect to Moody's, $25,000,000), or is one of the
ten largest Mortgage Loans by Stated Principal Balance as of such date,
permit the transfer or transfers of (A) the related Mortgaged Property or
any interest therein or (B) equity interests in the Mortgagor or any
equity owner of the Mortgagor that would result, in the aggregate during
the term of the related Mortgage Loan, in a transfer greater than 49% of
the total interest in the Mortgagor and/or any equity owner of the
Mortgagor or a transfer of voting control in the Mortgagor or an equity
owner of the Mortgagor without the prior written confirmation from each
Rating Agency that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the Certificates;
(v) allow any additional lien on the related Mortgaged Property if
such Mortgage Loan is equal to or in excess of 2% of the then aggregate
current principal balances of the Mortgage Loans or $20,000,000, is one of
the ten largest Mortgage Loans by Stated Principal Balance as of such
date, or with respect to S&P only, has an aggregate Loan-to-Value Ratio
that is equal to or greater than 85% or has an aggregate Debt Service
Coverage Ratio that is less than 1.20x, without the prior written
confirmation from each Rating Agency (as applicable) that such change will
not result in the qualification, downgrade or withdrawal or the ratings
then assigned to the Certificates; or
(vi) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative and the rights (if any) of a Companion Holder (other than the
holders of the Non-Serviced Companion Loans) pursuant to the related
Intercreditor Agreement, the Special Servicer may (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the
amount of the Periodic Payment on any Specially Serviced Mortgage Loan,
including by way of a reduction in the related Mortgage Rate, (iii) forbear in
the enforcement of any right granted under any Mortgage Note or Mortgage
relating to a Specially Serviced Mortgage Loan, (iv) extend the maturity date of
any Specially Serviced Mortgage Loan (and the Master Servicer may extend the
maturity date of Mortgage Loans with an original maturity of five years or less
with the approval of the Controlling Class for up to two (2) six-month
extensions) or (v) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor
is in default with respect to the Specially Serviced Mortgage Loan or, in the
reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, and (B) in the reasonable, good faith judgment of the
Special Servicer, such modification would increase the recovery on the Mortgage
Loan to Certificateholders on a net present value basis (the relevant
discounting of amounts that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate). In the case of every other
modification, waiver or consent, the Special Servicer shall determine and may
rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of
the Trust Fund to the extent not paid by the related Mortgagor) to the effect
that such modification, waiver or amendment would not both (1) effect an
exchange or reissuance of the Mortgage Loan under Treasury Regulations Section
1.860G-2(b) of the Code and (2) cause either of REMIC I or REMIC II to fail to
qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained an
Appraisal of the related Mortgaged Property, in connection with such extension,
which Appraisal supports the determination of the Special Servicer contemplated
by clause (B) of the proviso to the immediately preceding paragraph.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) reduce the Mortgage Rate of a Mortgage Loan to less than
the lesser of (A) the original Mortgage Rate of such Mortgage Loan, (B) the
highest Pass-Through Rate of any Class of Certificates (other than the Class IO
Certificates) then outstanding and (C) a rate below the then prevailing interest
rate for comparable loans, as determined by the Special Servicer, (iii) if the
Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee
simple interest), extend the maturity date of such Mortgage Loan beyond a date
which is less than 20 years prior to the expiration of the term of such Ground
Lease; (iv) defer interest due on any Mortgage Loan in excess of 10% of the
Stated Principal Balance of such Mortgage Loan or defer the collection of
interest on any Mortgage Loan without accruing interest on such deferred
interest at a rate at least equal to the Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall append to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(e) Any payment of interest or recovery of costs and expenses that
is deferred pursuant to any modification, waiver or amendment permitted
hereunder, shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to the unpaid
principal balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such modification, waiver or amendment so
permit. The foregoing shall in no way limit the Special Servicer's ability to
charge and collect from the Mortgagor costs otherwise collectible under the
terms of the related Mortgage Note and this Agreement together with interest
thereon.
(f) The Special Servicer or, with respect to clause (i) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request; provided such fee
would not itself be a "significant modification" pursuant to Treasury
Regulations Section 1.1001-3(e)(2) and (ii) any related costs and expenses
incurred by it. In no event shall the Master Servicer or the Special Servicer be
entitled to payment for such fees or expenses unless such payment is collected
from the related Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub-Servicers, the Trustee, the Controlling Class Representative, the
Rating Agencies and with respect to any Co-Lender Loan, the related Companion
Holder, in writing, of any material modification, waiver or amendment of any
term of any Mortgage Loan (including fees charged the Mortgagor) and the date
thereof, and shall deliver to the 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 ten Business Days)
following the execution thereof. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Mortgage Loan is effected
shall be made available for review upon prior request during normal business
hours at the offices of the Special Servicer pursuant to Section 3.15 hereof.
(h) The Master Servicer shall not permit defeasance of any Mortgage
Loan to the extent inconsistent with the terms of such Mortgage Loan. Unless and
to the extent the Master Servicer is precluded from preventing such defeasance
by the related Mortgage Loan documents or otherwise (provided that the Master
Servicer shall not allow such defeasance to cause either of REMIC I or REMIC II
created hereunder to fail to qualify as a REMIC; provided, further, the Master
Servicer may rely on an Opinion of Counsel as provided for in (ii) below), the
Master Servicer will not permit defeasance of any Mortgage Loan, unless: (i) the
defeasance collateral consists of non-callable "government securities" within
the meaning of the Investment Company Act of 1940, (ii) the Master Servicer has
determined that the defeasance will not result in an Adverse REMIC Event
(provided that the Master Servicer shall be entitled to rely conclusively on an
Opinion of Counsel to that effect), (iii) the Master Servicer has notified the
Rating Agencies, (iv) to the extent the defeasance of the Mortgage Loan is
required by the then current applicable Rating Agency criteria to be reviewed by
a Rating Agency, such Rating Agency has confirmed that such defeasance will not
result in the qualification, downgrade or withdrawal of the rating then assigned
to any Class of Certificates to which a rating has been assigned by such Rating
Agency, (provided that no confirmation from S&P shall be required if the
Mortgage Loan being defeased, together with all Mortgage Loans
cross-collateralized with such Mortgage Loan, (i) is not one of the ten (10)
largest Mortgage Loans (or cross-collateralized groups of Mortgage Loans) by
Stated Principal Balance in the Trust Fund, and (ii) has a Stated Principal
Balance at the time of the defeasance that is less than $35,000,000 and less
than 5% of the aggregate Stated Principal Balance at the time of the defeasance
of the Mortgage Loans and the Master Servicer shall have delivered a Defeasance
Certificate substantially in the form of Exhibit N hereto), (v) the Master
Servicer has requested and received from the related Mortgagor (A) an Opinion of
Counsel generally to the effect that the Trustee will have a perfected, first
priority security interest in such defeasance collateral and (B) written
confirmation from a firm of Independent accountants stating that payments made
on such defeasance collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan in full on or before its Stated
Maturity Date and in accordance with the Periodic Payment (or, in the case of an
ARD Loan, on or before its Anticipated Repayment Date) and to timely pay each
Periodic Payment scheduled to be due on or prior thereto but after the
defeasance and (vi) a single purpose entity (as defined below) is designated to
assume the Mortgage Loan and own the defeasance collateral; provided that if
under the terms of the related Mortgage Loan documents, the related Mortgagor
delivers cash to purchase the defeasance collateral rather than the defeasance
collateral itself, the Master Servicer shall purchase the U.S. government
obligations contemplated by the related Mortgage Loan documents on behalf of the
related Mortgagor. Any customary and reasonable out-of-pocket expense incurred
by the Master Servicer pursuant to this Section 3.20(h) shall be paid by the
Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document. Notwithstanding the foregoing, if at
any time, a court with jurisdiction in the matter shall hold that the related
Mortgagor may obtain a release of the subject Mortgaged Property but is not
obligated to deliver the full amount of the defeasance collateral contemplated
by the related Mortgage Loan documents (or cash sufficient to purchase such
defeasance collateral), then the Master Servicer shall (i) if consistent with
the related Mortgage Loan documents, refuse to allow the defeasance of the
Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related
Mortgagor has delivered cash to purchase the defeasance collateral, the Master
Servicer shall either (A) buy such defeasance collateral or (B) prepay the
Mortgage Loan, in either case, in accordance with the Servicing Standard. For
purposes of this paragraph, a "single purpose entity" shall mean a Person, other
than an individual, whose organizational documents provide as follows: it is
formed solely for the purpose of owning and pledging Defeasance Collateral
related to one or more of the Mortgage Loans; it may not engage in any business
unrelated to such Defeasance Collateral and the financing thereof; it does not
have and may not own any assets other than those related to its interest in the
Defeasance Collateral or the financing thereof and may not incur any
indebtedness other than as permitted by the related Mortgage or Mortgages; it
shall maintain its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; it
shall hold regular meetings, as appropriate, to conduct its business, and shall
observe all entity-level formalities and record keeping; it shall conduct
business in its own name and use separate stationery, invoices and checks; it
may not guarantee or assume the debts or obligations of any other person other
than in connection with the defeasance of a Mortgage Loan; it shall not
commingle its assets or funds with those of any other person; it shall pay its
obligations and expenses from its own funds and allocate and charge reasonably
and fairly any common employees or overhead shared with affiliates; it shall
prepare separate tax returns and financial statements or, if part of a
consolidated group, shall be shown as a separate member of such group; it shall
transact business with affiliates on an arm's length basis pursuant to written
agreements; and it shall hold itself out as being a legal entity, separate and
apart from any other person. The single purpose entity organizational documents
shall provide that any dissolution and winding up or insolvency filing for such
entity requires the unanimous consent of all partners or members, as applicable,
and that such documents may not be amended with respect to the single purpose
entity requirements during the term of the Mortgage Loan.
(i) For any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or the Non-Serviced Mortgage Loans) and subject to the rights of the
Special Servicer set forth in this Section 3.20, the Master Servicer, without
the consent of the Special Servicer or the Controlling Class Representative, as
applicable, shall be responsible for any request by a Mortgagor for the consent
of the mortgagee for a modification, waiver or amendment of any term with
respect to:
(i) approving routine leasing activity (including any subordination,
standstill and attornment agreements) with respect to any lease for less
than the lesser of (a) 30,000 square feet or (b) 20% of the related
Mortgaged Property;
(ii) approving a change of the property manager at the request of
the related Mortgagor; provided that (A) the successor property manager is
not affiliated with the 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 Companion Loan;
(iii) approving 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) approving 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, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(vi) approving modifications, consents or waivers (other than those
set forth in Section 3.20(c)) in connection with a defeasance permitted by
the terms of the related Mortgage Loan if the Master 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) approving certain consents with respect to right-of-ways and
easements and consent to subordination of the related Mortgage Loan to
such easements or right-of-ways; provided that the Master 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 Co-Lender Loan, the Master Servicer
shall provide written notice of such modification, waiver and amendment to the
related Companion Holder to the extent required under the related Intercreditor
Agreement; provided, further, the Master Servicer shall promptly notify the
Special Servicer of any requests not subject to this Section 3.20(i) 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 the Master Servicer and Special Servicer)
a copy of the request, and all information in the possession of the Master
Servicer that the Special Servicer may reasonably request related thereto.
(j) For the avoidance of doubt, and without limiting the generality
of the foregoing, any request for the disbursement of earnouts or holdback
amounts with respect to any Mortgage Loan set forth on attached Exhibit J hereto
received by the Master Servicer shall be submitted to the Special Servicer for
approval (which approval shall be deemed given if the request is not denied by
the Special Servicer in writing to the Master Servicer within ten (10) Business
Days of the Special Servicer's receipt of such request). For purposes of this
Agreement, "disbursement of earnouts or holdback amounts" shall mean the
disbursement or funding to a Mortgagor of previously unfunded, escrowed or
otherwise reserved portions of the loan proceeds of the applicable Mortgage Loan
until certain conditions precedent thereto relating to the satisfaction of
performance related criteria (i.e., project reserve thresholds, lease-up
requirements, sales requirements, etc.) as set forth in the applicable Mortgage
Loan documents, have been satisfied.
(k) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer and
the Special Servicer under Section 3.11 out of such Penalty Interest or late
payment charges shall be reduced proportionately, based upon the respective
amounts that had been payable thereto out of such Penalty Interest or late
payment charges immediately prior to such waiver.
(l) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall take
the following action unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related Mortgage Loan documents) from the Rating Agencies that such action
will not result in a qualification, downgrade or withdrawal of any of the
ratings assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures a Mortgage
Loan with an unpaid principal balance that is at least equal to (i) one of
the top ten Mortgage Loans by Stated Principal Balance, (ii) five percent
(5%) of the then aggregate principal balance of all Mortgage Loans or
$35,000,000, the giving of any consent, approval or direction regarding
the termination of the related property manager or the designation of any
replacement property manager; and
(ii) With respect to each Mortgage Loan with an unpaid principal
balance that is equal to or greater than (A) two percent (2%) of the then
aggregate principal balance of all the Mortgage Loans or (B) $10,000,000
and which is secured by a Mortgaged Property which is a hospitality
property, the giving of any consent to any change in the franchise
affiliation of such Mortgaged Property.
(m) In the event the Special Servicer, in connection with a
modification, waiver or amendment in respect of any Co-Lender Loan (other than
the Non-Serviced Mortgage Loans), modifies, waives or amends the terms thereof
such that (i) the Stated Principal Balance is decreased, (ii) the Mortgage Rate
is reduced, (iii) payments of interest or principal are waived, reduced or
deferred or (iv) any other adjustment is made to any of the terms of such
Co-Lender Loan, all payments made in respect of the related Mortgage Loan shall
be made as though such modification, waiver or amendment did not occur, with the
payment terms of such Co-Lender Loan remaining the same as they are on the
related Cut Off Date, and the related Subordinate Companion Loan(s) shall bear
the full economic effect of all waivers, reductions or deferrals of amounts due
on such Co-Lender Loan attributable to such modification, waiver or amendment.
(n) Subject to the terms of the related Intercreditor Agreement, the
Master Servicer may extend the maturity date of Mortgage Loans with an original
maturity of five years or less with the approval of the Controlling Class
Representative for up to two six-month extensions.
Section 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan (other than the Non-Serviced Mortgage Loans),
the Master Servicer or Special Servicer, as applicable, shall promptly notify
the Trustee, Controlling Class Representative and Master Servicer or Special
Servicer, as applicable, and, if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately deliver or cause to be delivered
a copy of the related Mortgage File and Servicing File, to the Special Servicer
and shall use reasonable efforts to provide the Special Servicer with all
information, documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable the related Companion Loan, either in the
Master Servicer's or any of its directors', officers', employees', affiliates'
or agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested (from time to time) by
the Special Servicer to enable it to assume its functions hereunder with respect
thereto without acting through a Sub-Servicer. The Master Servicer shall use
reasonable efforts to comply with the preceding sentence within 5 Business Days
of the occurrence of each related Servicing Transfer Event; provided, however,
if the information, documents and records requested by the Special Servicer are
not contained in the Servicing File, the Master Servicer shall have such period
of time as reasonably necessary to make such delivery. Notwithstanding the
occurrence of a Servicing Transfer Event, the Master Servicer shall continue to
receive payments on such Mortgage Loan (including amounts collected by the
Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof to the
Master Servicer, and shall return the related Mortgage File and Servicing File
and all other information, documents and records that were not part of the
Servicing File when it was delivered to the Special Servicer within 5 Business
Days of the occurrence, to the Master Servicer (or such other Person as may be
directed by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such
Mortgage Loan, and, if applicable, the Companion Loan, and the Special
Servicer's right to receive the Special Servicing Fee with respect to such
Mortgage Loan shall terminate, and the obligations of the Master Servicer to
service and administer such Mortgage Loan and, if applicable, the related
Companion Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer).
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer and each Rating Agency (or such other Person as
may be directed by the Master Servicer) a statement in writing and in computer
readable format (the form of such statement to be agreed upon by the Master
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Mortgage Loans and REO Properties,
the information described in clauses (x) through (xiii) of Section 4.02(a) and,
insofar as it relates to the Special Servicer, the information described in
clauses (xxviii), (xxix) and (xxx) of Section 4.02(a), (2) the amount of all
payments, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each Specially Serviced Mortgage
Loan during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
requested by the Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Property during the related Collection Period and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer 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
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
(d) No later than 60 days after a Mortgage Loan and, if applicable,
Companion Loan becomes a Specially Serviced Mortgage Loan, the Special Servicer
shall deliver to each Rating Agency, the Trustee, the Master Servicer and the
Controlling Class Representative (and, in the case of a Co-Lender Loan, the
related Companion Holder), a report (the "Asset Status Report") with respect to
such Mortgage Loan and the related Mortgaged Property. Such Asset Status Report
shall set forth the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably 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 Specially Serviced Mortgage Loan and whether outside legal counsel
has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
Any Asset Status Report with respect to a Co-Lender Loan shall also
include any additional information required by the related Intercreditor
Agreement. In addition, with respect to a Co-Lender Loan, the Controlling Class
Representative's approval or disapproval of any actions recommended by such
Asset Status Report relating to such Co-Lender Loan will be subject to the
rights of the related Companion Holder pursuant to the terms of the related
Intercreditor Agreement.
If within 10 Business Days of receiving an Asset Status Report which
relates to a recommended action for which the Controlling Class Representative
is entitled to object under Section 6.11, the Controlling Class Representative
does not disapprove such Asset Status Report in writing, the Special Servicer
shall implement the recommended action as outlined in such Asset Status Report;
provided, however, the Special Servicer may not take any action that is contrary
to applicable law, the Servicing Standard, or the terms of the applicable
Mortgage Loan documents. If the Controlling Class Representative disapproves
such Asset Status Report, the Special Servicer will revise such Asset Status
Report and deliver to the Controlling Class Representative, the Rating Agencies
and the Master Servicer 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 Controlling Class
Representative 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. 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.
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 (and consistent
with the terms hereof) 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
or, if a Loan Pair is involved, the Certificateholders and the related Companion
Holders, (as a collective whole) and it has made a reasonable effort to contact
the Controlling Class Representative and (ii) in any case, shall determine
whether such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standard.
Upon making such determination in clause (ii) of the immediately
preceding paragraph, the Special Servicer shall notify the Trustee of such
rejection and deliver to the Trustee, a proposed notice to Certificateholders
which shall include a copy of the Asset Status Report, and the Trustee shall
send such notice to all Certificateholders. If the majority of such
Certificateholders, as determined by Voting Rights, fail, within 5 days of the
Trustee's sending such notice, to reject such Asset Status Report, the Special
Servicer shall implement the same. If the Asset Status Report is rejected by a
majority of the Certificateholders, (other than for a reason which violates the
Servicing Standard, which shall control), the Special Servicer shall revise such
Asset Status Report as described above in this Section 3.21(d) and provide a
copy of such revised report to the Master Servicer. The Trustee shall be
entitled to reimbursement from the Trust Fund for the reasonable expenses of
providing such notices. Notwithstanding the foregoing, the Controlling Class
Representative's approval of or failure to respond to an Asset Status Report
shall not be deemed to be a substitute for any specific consent required
pursuant to Section 6.11(a).
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, the terms hereof 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.
No direction of the Controlling Class Representative or the majority
of the Certificateholders shall (a) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard and to maintain the REMIC status of
REMIC I and REMIC II and the grantor trust status of the Grantor Trusts, (b)
result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions or (c) expose the Master Servicer,
the Special Servicer, the Depositor, any of the Mortgage Loan Sellers, the Trust
Fund or the Trustee or the officers and the directors of each party to claim,
suit or liability or (d) expand the scope of the Master Servicer's, Trustee's or
Special Servicer's responsibilities under this Agreement. Notwithstanding the
foregoing, it is agreed and acknowledged that, with respect to the Co-Lender
Loans, the holders of the Companion Loans have certain consent and direction
rights in the related Intercreditor Agreements, but nothing herein shall be
construed to prevent the Controlling Class Representative from consulting on a
non-binding basis with the Special Servicer about any applicable Mortgage Loan.
Section 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (and, with respect
to the Special Servicer, only with the consent of the Controlling Class
Representative) may enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or all of their respective obligations
hereunder; provided that in each case, the Sub-Servicing Agreement: (i) is
consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a)(ix) and (x) to the extent applicable (modified to apply to the
Sub-Servicer instead of the Master Servicer); (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent such obligations arose prior to the date of
assumption, obligations of the Master Servicer or the Special Servicer, as the
case may be, under such agreement or (except with respect only to the
Sub-Servicing Agreements in effect as of the date of this Agreement) may
terminate such Sub-Servicing Agreement without cause and without payment of any
penalty or termination fee (other than the right of reimbursement and
indemnification); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii) none of the Trustee,
the Trust Fund, any successor Master Servicer or Special Servicer, as the case
may be, or any Certificateholder shall have any duties under such agreement or
any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty; (v) with respect to
any Sub-Servicing Agreement entered into by the Special Servicer, does not
permit the Sub-Servicer to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of the Special Servicer
contemplated by Section 3.20 hereof without the consent of such Special Servicer
or conduct any foreclosure action contemplated by Section 3.09 hereof or sale of
a Mortgage Loan or REO Property contemplated by Section 3.18 hereof; (vi) does
not permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund; and (vii) with respect to any
Sub-Servicing Agreement entered into after the Closing Date and prior to the
date upon which the Trust Fund's Exchange Act reporting obligations are
terminated by the filing of a Form 15 Suspension Notice as contemplated by
Section 8.17(m), any Sub-Servicer (which is a Reporting Party) is not a
Prohibited Party. In addition, each Sub-Servicing Agreement entered into by the
Master Servicer shall provide that such agreement shall be subject to Section
3.21 hereof with respect to any Mortgage Loan that becomes a Specially Serviced
Mortgage Loan. The Master Servicer and the Special Servicer shall each deliver
to the Trustee and to each other 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 Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make P&I Advances or
Servicing Advances shall be deemed to have been advanced by the Master Servicer
or the Special Servicer, as the case may be, out of its own funds and,
accordingly, such P&I Advances or Servicing Advances shall be recoverable by
such Sub-Servicer in the same manner and out of the same funds as if such
Sub-Servicer were the Master Servicer or the Special Servicer, as the case may
be. For so long as they are outstanding, Advances shall accrue interest in
accordance with Sections 3.03(d) and 4.03(d), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(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.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer may each have the right to remove a Sub-Servicer at any time it
considers such removal to be in the best interests of Certificateholders.
(d) In the event of the resignation, removal or other termination of
Wachovia Bank, National Association, or any successor Master Servicer hereunder
for any reason, the Trustee or other Person succeeding such resigning, removed
or terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this Agreement: (i) to
assume the rights and obligations of the Master Servicer under such
Sub-Servicing Agreement and continue the sub-servicing arrangements thereunder
on the same terms (including without limitation the obligation to pay the same
sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with such
Sub-Servicer on such terms as the Trustee or other successor Master Servicer and
such Sub-Servicer shall mutually agree (it being understood that such
Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if an
Event of Default (as defined in such Sub-Servicing Agreement) has occurred and
is continuing or otherwise in accordance with the Sub-Servicing Agreement, in
each case without paying any Sub-Servicer termination fee.
Each Sub-Servicing Agreement will provide, among other things, that
the Master Servicer and its successors may at its sole option, terminate any
rights the Sub-Servicer may have thereunder with respect to any or all Mortgage
Loans if Moody's or S&P (i) reduces the rating assigned to one or more Classes
of the respective Certificates as a result of the sub-servicing of the Mortgage
Loans by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective 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 each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless it receives the consent of the Controlling Class Representative
and each Rating Agency has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this section) that represent less than
25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder.
(g) The Master Servicer shall cause any Sub-Servicer engaged by the
Master Servicer (or by any Sub-Servicer) for the benefit of the Depositor and
the Trustee to comply with the provisions of this Section 3.22 and with Section
8.17 of this Agreement to the same extent as if such Sub-Servicer were the
Master Servicer, and to provide the information required with respect to such
Sub-Servicer under this Section 3.22. The Master Servicer shall be responsible
for obtaining from each such Sub-Servicer and delivering to the Trustee and any
applicable Persons any servicer compliance statement required to be delivered by
such Sub-Servicer under Section 3.13 and any assessment of compliance report and
related accountant's attestation required to be delivered by such Sub-Servicer
under Section 3.14, in each case, as and when required to be delivered.
(h) Each of the Master Servicer, the Special Servicer, the
Sub-Servicer and the Trustee (each of the Master Servicer, the Special Servicer
and the Trustee and each Sub-Servicer, for purposes of this paragraph and the
succeeding paragraph, a "Servicer") is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor and the Trustee a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor utilized by such Servicer, specifying (i) the
identity of each Subcontractor, (ii) which (if any) of such Subcontractors are
Servicing Participants, and (iii) which elements of the Servicing Criteria will
be addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph. As a condition to the
utilization by such Servicer of any Subcontractor determined to be a Servicing
Participant, such Servicer shall cause any such Subcontractor used by such
Servicer for the benefit of the Depositor and the Trustee to comply with the
provisions of Sections 3.13, 3.14 and 8.17 of this Agreement to the same extent
as if such Subcontractor were such Servicer. Such Servicer shall be responsible
for obtaining from each such Subcontractor and delivering to the applicable
Persons any assessment of compliance report and related accountant's attestation
required to be delivered by such Subcontractor under Section 3.13, Section 3.14
and Section 3.17, in each case, as and when required to be delivered.
(i) Notwithstanding the foregoing, if a Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, such Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such affiliate or third-party vendor meets the criteria in Item
1108(a)(2)(i) or (ii) or (iii) of Regulation AB. If a Servicer determines,
pursuant to the preceding sentence, that such Subcontractor is a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i) or (ii) or (iii) of Regulation AB, then such Subcontractor shall
be deemed to be a Sub-Servicer for purposes of this Agreement, the engagement of
such Sub-Servicer shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Sub-Servicing Agreement.
No Sub-Servicing Agreement shall be effective until 30 days after such written
notice is received by the Depositor and the Trustee. Such notice shall contain
all information reasonably necessary to enable the Trustee to accurately and
timely report the event pursuant to Section 8.17.
Section 3.23. Representations and Warranties of Master Servicer and
Special Servicer.
(a) Wachovia Bank, National Association, in its capacity as Master
Servicer, hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the Certificateholders and the Companion Holders, and to the
Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the Master
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 Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of association or by-laws 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 by which it is bound.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable receivership, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement 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 Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer, calculated on a consolidated basis.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
direct or indirect parent), determined in accordance with generally
accepted accounting principles, is not less than $15,000,000.
(ix) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement has been obtained and is effective.
(x) The Master Servicer possesses the fidelity bond required
pursuant to Section 3.07(c) of this Agreement.
(b) CWCapital Asset Management LLC, in its capacity as the Special
Servicer, hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the Certificateholders and the Companion Holders, and to the
Depositor and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized under the laws of the Commonwealth of Massachusetts, validly
existing 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 material
instrument by which it is bound.
(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 or to perform its obligations under
this Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer the outcome
of which in the Special Servicer's good faith and reasonable judgment
could reasonably be expected to 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, director and employee of the Special Servicer
and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(ix) The Special Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Section 3.23(a) (with respect to the Master
Servicer) and Section 3.23(b) (with respect to the Special Servicer)
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
Section 3.24. Sub-Servicing Agreement Representation and Warranty.
The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
Section 3.25. Designation of Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative having the rights and powers
specified in this Agreement (including those specified in Section 6.11) or to
replace an existing Controlling Class Representative. The advisor referred to
above is referred to herein as the "Controlling Class Representative". Upon (i)
the receipt by the Trustee of written requests for the selection of a
Controlling Class Representative from the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of Certificates representing more than 50%
of the Class Principal Balance of the Controlling Class, (ii) the resignation or
removal of the Person acting as Controlling Class Representative or (iii) a
determination by the Trustee that the Controlling Class has changed, the Trustee
shall promptly notify the Depositor and the Holders (and, in the case of
Book-Entry Certificates, to the extent actually known to a Responsible Officer
of the Trustee or identified thereto by the Depository or the Depository
Participants, the Certificate Owners) of the Controlling Class that they may
select a Controlling Class Representative. Such notice shall set forth the
process for selecting a Controlling Class Representative, which shall be the
designation of the Controlling Class Representative by the Holders (or
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class by a writing delivered to the
Trustee. No appointment of any Person as a Controlling Class Representative
shall be effective until such Person provides the Trustee and the Master
Servicer with written confirmation of its acceptance of such appointment, an
address and telecopy number for the delivery of notices and other correspondence
and a list of officers or employees of such Person with whom the parties to this
Agreement may deal (including their names, titles, work addresses and telecopy
numbers). American Capital Strategies, Ltd., or an affiliate, shall be the
initial Controlling Class Representative with respect to the Mortgage Loans
without need for further designation or notice. Notwithstanding the foregoing,
with respect to the DDR Southeast Pool Loan, the Controlling Class
Representative shall, in accordance with related Intercreditor Agreement, be the
DDR Southeast Pool Pari Passu Note A-1 Companion Loan.
Notwithstanding anything in this Section 3.25(a), the holders of the
Companion Loans have certain consent and direction rights pursuant to the terms
of the related Intercreditor Agreements as incorporated in this Agreement, and
this Section shall not supersede any such rights, but nothing herein shall be
construed to limit the right of the Controlling Class Representative to consult
on a non-binding basis with the Special Servicer about any applicable Mortgage
Loan.
(b) Within 10 Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of receiving a
request therefor from the Master Servicer or Special Servicer, the Trustee
shall, to the extent in its possession, deliver to the requesting party the
identity of the Controlling Class Representative and a list of each Holder (or,
in the case of Book-Entry Certificates, to the extent actually known to a
Responsible Officer of the Trustee or identified thereto by the Depository or
the Depository Participants, each Certificate Owner) of the Controlling Class,
including, in each case, names and addresses. With respect to such information,
the Trustee shall be entitled to conclusively rely on information provided to it
by the Depository, and the Master Servicer and the Special Servicer shall be
entitled to rely on such information provided by the Trustee with respect to any
obligation or right hereunder that the Master Servicer and the Special Servicer
may have to deliver information or otherwise communicate with the Controlling
Class Representative or any of the Holders (or, if applicable, Certificate
Owners) of the Controlling Class. In addition to the foregoing, within two (2)
Business Days of the selection, resignation or removal of a Controlling Class
Representative, the Trustee shall notify the other parties to this Agreement of
such event. The expenses incurred by the Trustee in connection with obtaining
information from the Depository or Depository Participants with respect to any
Book-Entry Certificate shall be expenses of the Trust Fund payable out of the
Certificate Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the case
of Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust Fund. Notwithstanding
the foregoing, if a claim is made against the Controlling Class Representative
by a Mortgagor with respect to this Agreement or any particular Mortgage Loan,
the Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer or
the Trust Fund are also named parties to the same action and, in the reasonable
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust Fund to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
(f) All rights to, and requirements for, information or notice
(including, but not limited to the delivery of information, notice or access to
information) provided to the Controlling Class Representative or
Certificateholders, in general contained in this Agreement shall also apply to
each Companion Holder (provided such Companion Holder is not a Mortgagor or an
affiliate of a Mortgagor) with respect to information relating to the related
Co-Lender Loan (but, in the case of information relating to a Co-Lender Loan,
excluding the fair value determination thereof).
Section 3.26. Companion Paying Agent.
(a) The Master Servicer shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein. The Companion Paying Agent
shall promptly make available to the Companion Holders (other than the holders
of the Companion Loan relating to the Non-Serviced Mortgage Loans) all reports
available to the Companion Paying Agent that the Trustee has made available to
Certificateholders under this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith or its own willful misfeasance; provided, however, the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent and, in the absence of bad faith on the part of the Companion
Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth
and correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) If the Companion Paying Agent is also the Master Servicer, upon
the resignation or removal of the Master Servicer pursuant to this Agreement,
the Companion Paying Agent shall be deemed simultaneously to resign or be
removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.27. Companion Register.
The Companion Paying Agent shall maintain a register (the "Companion
Register") on which it will record the names and addresses of, and wire transfer
instructions for, the Companion Holders (other than the holders of the Companion
Loans relating to the Non-Serviced Mortgage Loans) from time to time, to the
extent such information is provided in writing to it by the Companion Holder.
Each initial Companion Holder, along with its name, address, wiring instructions
and tax identification number, is listed on Exhibit L hereto. The Companion
Holders shall inform the Companion Paying Agent and the Master Servicer of the
name, address, wiring instructions and taxpayer identification number of any
subsequent Companion Holders upon any transfer of a Companion Loan. Upon the
sale of a Companion Loan or portion thereof, the transferring Companion Holder
shall inform the Companion Paying Agent and the Master Servicer in writing that
such transfer has taken place and provide the Companion Paying Agent and the
Master Servicer with the name, address, wiring instructions and tax
identification number of the transferee. In the event the Companion Holder
transfers a Companion Loan without notice to the Companion Paying Agent, the
Companion Paying Agent shall have no liability for any misdirected payment in
the related Companion Loan and shall have no obligation to recover and redirect
such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holders to any party hereto or any successor Companion
Holders upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
Section 3.28. Future Debt Secured by Interests in Related
Mortgagors.
In the event the Mortgage Loan documents permit ownership interests
in the related Mortgagor to be pledged as security for mezzanine debt in the
future, in addition to any consents required hereunder, the Master Servicer
shall require, to the extent not inconsistent with the Mortgage Loan documents,
the execution in favor of the Trust Fund of a subordination and standstill
agreement or an intercreditor agreement, as applicable, in form and substance
that would be satisfactory to a commercially reasonable and prudent mortgage
lender.
Section 3.29. Certain Matters Relating to the Future Securitization
of the Pari Passu Companion Loans.
(a) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
reasonable efforts to cause any Sub-Servicer appointed by such party with
respect to each Pari Passu Mortgage Loan (other than the Beacon D.C. & Seattle
Pool Loan and the DDR Southeast Pool Loan) to, upon request or notice from such
Mortgage Loan Seller, cooperate with any Mortgage Loan Seller that is selling
the related Pari Passu Companion Loan into a securitization that is required to
comply with Regulation AB (a "Regulation AB Companion Loan Securitization") and,
to the extent necessary in order to comply with Regulation AB, provide to the
Mortgage Loan Seller information about itself that such Mortgage Loan Seller
reasonably requires to meet the requirements of Items 1117 and 1119 and
paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108 of Regulation AB and
shall cooperate with such Mortgage Loan Seller to provide such other information
as may be necessary to comply with the requirements of Regulation AB. Each of
the Trustee, the Master Servicer and the Special Servicer understands that such
information provided by the Trustee (where such information pertains to Wells
Fargo Bank, N.A. individually and not to any specific aspect of the Trustee's
duties or obligations under this Agreement), the Master Servicer (where such
information pertains to Wachovia Bank, National Association individually and not
to any specific aspect of the Master Servicer's duties or obligations under this
Agreement) and the Special Servicer (where such information pertains to
CWCapital Asset Management LLC individually and not to any specific aspect of
the Special Servicer's duties or obligations under this Agreement), as
applicable, to such Mortgage Loan Seller as required by this clause (a) may be
included in the offering material related to a Regulation AB Companion Loan
Securitization and agrees to indemnify and hold the related depositor and
underwriter(s) of the Regulation AB Loan Securitization harmless for any costs,
liabilities, fees and expenses incurred by the Mortgage Loan Seller as a result
of any material misstatements or omissions or any alleged material misstatements
or alleged omissions in any such offering material to the extent that such
material misstatement or omission was made in reliance upon any such information
provided by such person. Any such indemnification shall be in substantially the
same form as provided by such party in this transaction. Notwithstanding the
foregoing, to the extent that the information provided by the Trustee, the
Master Servicer or the Special Servicer, as applicable, for inclusion in the
offering materials related to such Regulation AB Companion Loan Securitization
is substantially and materially similar to the information provided by such
party with respect to the offering materials related to this transaction,
subject to any required changes due to any amendments to Regulation AB or any
changes in the interpretation of Regulation AB, such party shall be deemed to be
in compliance with this Section 3.29(a). Each of the Trustee, the Master
Servicer and the Special Servicer shall provide an opinion of counsel (which
opinion of counsel shall be an expense of the trust fund created in connection
with the Regulation AB Companion Loan Securitization) in substantially the same
form as provided in this transaction which provides that any information
provided by such party pursuant to this Section 3.29(a) with respect to such
Regulation AB Companion Loan Securitization complies with Items 1117 and 1119
(with respect to Item 1119, only as it relates to any Sub-Servicer,
subcontractor or agent retained by it) and paragraphs (b), (c)(3), (c)(4) (but
only with regard to second sentence thereof) and (c)(5) of Item 1108 of
Regulation AB and that the offering material related to such Regulation AB
Companion Loan Securitization contains all information required of such party to
meet the requirements of Items 1117 and 1119 (with respect to Item 1119, only as
it relates to any Sub-Servicer, subcontractor or agent retained by it) and
paragraphs (b), (c)(3), (c)(4) (but only with regard to second sentence thereof)
and (c)(5) of Item 1108 of Regulation AB to the extent that any such party would
be required pursuant to Regulation AB to provide such information.
(b) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
reasonable efforts to cause any Sub-Servicer, if any, appointed with respect to
each Pari Passu Mortgage Loan (other than the Beacon D.C. & Seattle Pool Loan
and the DDR Southeast Pool Loan) to, upon request or notice from such parties
(which request or notice shall be given each time a filing is required),
cooperate with the trustee, master servicer or special servicer for any
Regulation AB Companion Loan Securitization in preparing each Form 10-D required
to be filed by such Regulation AB Companion Loan Securitization (until January
30 of the first year in which the trustee for such Regulation AB Companion Loan
Securitization files a Form 15 Suspension Notice with respect to the related
trust fund) and shall provide to such trustee or master servicer within the time
period set forth in the pooling and servicing agreement for such Regulation AB
Companion Loan Securitization such information relating to the related Pari
Passu Companion Loan (other than the Beacon D.C. & Seattle Pool Pari Passu
Companion Loan and the DDR Southeast Pool Pari Passu Companion Loan) as may be
necessary for the servicer and trustee of the Regulation AB Companion Loan
Securitization to comply with the reporting requirements of Regulation AB
(provided such time period is not earlier than the time period set forth in this
Agreement); provided, however, any parties to any Regulation AB Companion Loan
Securitization shall consult with the Trustee, the Master Servicer and the
Special Servicer (and the Master Servicer shall consult with any Sub-Servicer
appointed with respect to the Pari Passu Companion Loan), and the Trustee, the
Master Servicer and the Special Servicer shall cooperate with such parties in
respect of establishing the time periods for preparation of the Form 10-D
reports in the documentation for such Regulation AB Companion Loan
Securitization. Notwithstanding the foregoing, to the extent the Trustee, the
Master Servicer or the Special Servicer complies in all material respects with
the timing, reporting and attestation requirements in Section 8.17 of this
Agreement with respect to the comparable timing, reporting and attestation
requirements contemplated in this Section 3.29(b) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 3.29(b).
(c) Each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
reasonable efforts to cause any Sub-Servicer, if any, appointed with respect to
each Pari Passu Mortgage Loan (other than the Beacon D.C. & Seattle Pool Loan
and the DDR Southeast Pool Loan) to, upon request from the trustee under the
Regulation AB Companion Loan Securitization (which request or notice shall be
given each time a filing is required), provide the trustee under a Regulation AB
Companion Loan Securitization (until January 30 of the first year in which the
trustee for such Regulation AB Companion Loan Securitization files a Form 15
Suspension Notice with respect to the related trust fund) information with
respect to any event that is required to be disclosed under Form 8-K with
respect to the Pari Passu Companion Loan (other than the Beacon D.C. & Seattle
Pool Pari Passu Companion Loan and the DDR Southeast Pool Pari Passu Companion
Loan) within two Business Days after the occurrence of such event of which it
has knowledge. Notwithstanding the foregoing, to the extent the Trustee, the
Master Servicer or the Special Servicer complies in all material respects with
the timing, reporting and attestation requirements in Section 8.17 of this
Agreement with respect to the comparable timing, reporting and attestation
requirements contemplated in this Section 3.29(c) with respect to such
Regulation AB Companion Loan Securitization, such party shall be deemed to be in
compliance with the provisions of this Section 3.29(c).
(d) On or before March 5 (with a 7 Business Day notice as provided
in Section 7.01(a)(iv) herein) of each year during which a Regulation AB
Companion Loan Securitization is required to file an annual report on Form 10-K
(and not in respect of any year in which such Regulation AB Companion Loan
Securitization is not required to file an annual report on Form 10-K because a
Form 15 Suspension Notice with respect to the related trust fund was filed),
each of the Trustee, the Master Servicer and the Special Servicer shall, and the
Master Servicer and the Special Servicer shall use reasonable efforts to cause
any Sub-Servicer appointed with respect to each Pari Passu Mortgage Loan (other
than the Beacon D.C. & Seattle Pool Loan and the DDR Southeast Pool Loan) to,
upon request from the trustee under the Regulation AB Companion Loan
Securitization (which request or notice shall be given each time a filing is
required), provide, with respect to itself, to the trustee under such Regulation
AB Companion Loan Securitization, to the extent required pursuant to Item 1122
of Regulation AB, (i) a report on an assessment of compliance with the servicing
criteria to the extent required pursuant to Item 1122(a) of Regulation AB, (ii)
a registered accounting firm's attestation report on such Person's assessment of
compliance with the applicable servicing criteria to the extent required
pursuant to Item 1122(b) of Regulation AB and (iii) such other information as
may be required pursuant to Item 1122(c) of Regulation AB. Notwithstanding the
foregoing, to the extent the Trustee, the Master Servicer or the Special
Servicer complies in all material respects with the timing, reporting and
attestation requirements in Section 8.17 of this Agreement with respect to the
comparable timing, reporting and attestation requirements contemplated in this
Section 3.29(d) with respect to such Regulation AB Companion Loan
Securitization, such party shall be deemed to be in compliance with the
provisions of this Section 3.29(d).
(e) On or before March 5 (with a 7 Business Day notice as provided
in Section 7.01(a)(iv) herein) of each year during which a Regulation AB
Companion Loan Securitization is required to file an annual report on Form 10-K
(and not in respect of any year in which such Regulation AB Companion Loan
Securitization is not required to file an annual report on Form 10-K because a
Form 15 Suspension Notice with respect to the related trust fund was filed),
each of the Trustee, the Master Servicer and the Special Servicer shall, and the
Master Servicer shall use reasonable efforts to cause the Primary Servicer, if
applicable, and any Sub-Servicer appointed with respect to each Pari Passu
Mortgage Loan (other than the Beacon D.C. & Seattle Pool Loan and the DDR
Southeast Pool Loan) to, to the extent required pursuant to Item 1123 of
Regulation AB, deliver, with respect to itself, to the trustee, upon request
from such trustee (which request or notice shall be given each time a filing is
required), under such Regulation AB Companion Loan Securitization a servicer
compliance statement signed by an authorized officer of such Person that
satisfies the requirements of Item 1123 of Regulation AB. Notwithstanding the
foregoing, to the extent the Trustee, the Master Servicer or the Special
Servicer complies in all material respects with the timing, reporting and
attestation requirements in Section 8.17 of this Agreement with respect to the
comparable timing, reporting and attestation requirements contemplated in this
Section 3.29(e) with respect to such Regulation AB Companion Loan
Securitization, such party shall be deemed to be in compliance with the
provisions of this Section 3.29(e).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall use reasonable efforts to cause a Sub-Servicer appointed by such
party to agree, (severally but not jointly) to indemnify (such indemnity limited
to each such parties respective failure described below) and hold the related
depositor or underwriter(s) under a Regulation AB Companion Loan Securitization
harmless for any costs, liabilities, fees and expenses incurred by such Mortgage
Loan Seller, depositor, trustee or master servicer as a result of any failure by
the Trustee, the Master Servicer and the Special Servicer, as applicable, to
comply with the reporting requirements to the extent applicable set forth under
Sections 3.29(b), (c), (d) and (e) above. Any such indemnification by a
Sub-Servicer shall be in substantially the same form as provided by the Trustee,
the Master Servicer or the Special Servicer, as applicable, in this transaction.
Each Sub-Servicing Agreement related to each Pari Passu Mortgage
Loan (other than the Beacon D.C. & Seattle Pool Loan and the DDR Southeast Pool
Loan) shall contain a provision requiring the related Sub-Servicer to provide to
the Master Servicer or Special Servicer, as applicable, information, reports and
certificates with respect to itself comparable to any information, reports or
certificates required to be provided by the Master Servicer or Special Servicer
pursuant to this Section 3.29, even if such Sub-Servicer is not otherwise
required to provide such information, reports or certificates to any Person in
order to comply with Regulation AB. Such information, reports or certificates
shall be provided to the Master Servicer or Special Servicer, as applicable, no
later than two Business Days prior to the date on which the Master Servicer or
Special Servicer, as applicable, is required to deliver its comparable
information, reports or certificates pursuant to this Section 3.29.
Section 3.30. 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 the Swap
Counterparty. The Paying Agent shall perform the duties and obligations of the
Trustee under the Swap Contracts.
(b) Not later than 11:00 a.m. New York City time, on the Business
Day prior to each Distribution Date, based on the CMSA Loan Periodic Update File
for the related Collection Period provided by the Master Servicer pursuant to
Section 4.01(b), information obtained by the Paying Agent from the Swap
Counterparty pursuant to the Swap Contracts, and subject to the priorities set
forth in Sections 4.01(a), 4.01(b) and 4.01(o) hereof, the Paying Agent shall
(i) calculate the Fixed Swap Payments, if any, and the Floating Swap Payments,
if any, in accordance with the terms of the Swap Contracts and this Agreement,
and (ii) notify each Swap Counterparty of any Floating Swap Payments, Fixed Swap
Payments and Net Swap Payments or Net Swap Receipts. In the event the Trustee
(or the Paying Agent on behalf of the Trust) fails to receive any Floating Swap
Payment payable by the Swap Counterparty on the Business Day prior to the
related Distribution Date, the Trustee (or Paying Agent) shall provide the 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 Floating Swap Payment by
11:00 a.m. New York City time on such Distribution Date, a Swap Default and a
Class A-4FL Distribution Conversion or Class A-MFL Distribution Conversion, as
applicable, shall occur on such Distribution Date.
(c) On each Distribution Date, the Paying Agent shall remit the Net
Swap Payments, if any, to the Swap Counterparty from the Class A-4FL Floating
Rate Account or Class A-MFL Floating Rate Account, as applicable; provided, that
upon and during the continuation of a Class A-4FL Distribution Conversion or
Class A-MFL Distribution Conversion, the Paying Agent shall not make such
payments to the Swap Counterparty. Promptly upon receipt of any payment or other
receipt in respect of a Swap Contract, the Paying Agent shall deposit the same
into the Class A-4FL Floating Rate Account or Class A-MFL Floating Rate Account,
as applicable.
(d) The Trustee (or the Paying Agent on the behalf of the Trustee)
shall at all times enforce the Trust Fund's rights under the Swap Contracts. In
the event of a Swap Default, the Trustee (or the Paying Agent on its behalf)
shall promptly provide written notice to the Holders of the Class A-4FL
Certificates, the Class A-4FL Component Certificates, the Class A-MFL
Certificates or the Class A-MFL Component 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 Principal Balance of (i) the Class
A-4FL Certificates and the Class A-4FL Component Certificates or (ii) the Class
A-MFL Certificates and the Class A-MFL Component Certificates, as applicable, to
enforce the rights of the Trust Fund under the related Swap Contract as may be
permitted by the terms thereof, including termination thereof, and use Swap
Termination Fees, if any, received from the 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 (or the Paying Agent on
its behalf), with a replacement swap counterparty that meets the Swap
Counterparty Threshold Ratings, 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 to the holders of the Class A-4FL Certificates, the Class A-4FL
Component Certificates, the Class A-MFL Certificates or the Class A-MFL
Component Certificates, as applicable, on the immediately succeeding
Distribution Date. Notwithstanding anything to the contrary in this Agreement or
the Swap Contracts, the Trustee shall be under no obligation to take any action
to enforce the rights of the Trust Fund under the Swap Contracts unless it is
assured, in its sole discretion, that the costs and expenses of such action(s)
will be reimbursed or indemnified by the Holders of the Class A-4FL
Certificates, the Class A-4FL Component Certificates, the Class A-MFL
Certificates or the Class A-MFL Component Certificates, as applicable, or any
other party (other than the Trust Fund).
Any Class A-4FL Distribution Conversion or Class A-MFL Distribution
Conversion shall become permanent following the determination by the Trustee (or
the Paying Agent acting on its behalf) not to enter into a replacement interest
rate swap contract and distribution of any Swap Termination Fees to the Holders
of the Class A-4FL Component Certificates and Class A-4FL Certificates pro rata,
based on remaining Class Principal Balances, or to the Holders of the Class
A-MFL Component Certificates and Class A-MFL Certificates pro rata, based on
remaining Class Principal Balances, as applicable. Any such Swap Default (or
termination of the related Swap Contract) and the resulting Class A-4FL
Distribution Conversion or Class A-MFL Distribution Conversion, as applicable,
shall not, in and of itself, constitute an Event of Default under this
Agreement.
Upon any change (or notification to the Paying Agent that such
change is imminent) in the payment terms on the Class A-4FL Certificates and/or
Class A-4FL Component Certificates or Class A-MFL Certificates and/or Class
A-MFL Component Certificates, including as a result of a Class A-4FL
Distribution Conversion or Class A-MFL Distribution Conversion, as applicable,
termination of a Class A-4FL Distribution Conversion or Class A-MFL Distribution
Conversion, as applicable, a Swap Default or the cure of a Swap Default, as
applicable, the Paying Agent shall promptly notify the Depositor of the change
in payment terms.
(e) In the event that a Swap Contract is terminated and no
replacement Swap Contract is entered into, the Paying Agent shall provide notice
of such termination to the Class A-4FL Component Certificateholders and the
Class A-4FL Certificateholders or the Class A-MFL Component Certificateholders
and the Class A-MFL Certificateholders, as applicable, which notice shall
include: "The Swap Contract related to the [____] Certificates is terminated as
of [date]. Certificateholders and beneficial owners that are Plans are advised
that the Exemptions will no longer apply to the [____] Certificates, effective
60 days after the receipt of this notice. All capitalized terms used in this
notice shall have the meaning assigned to them in the Pooling and Servicing
Agreement."
(f) The Paying Agent's obligation to pay to the Swap Counterparty
any funds under a Swap Contract shall be limited to the provisions of Sections
3.05(c) and (d) 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 Swap Counterparty any portion of the amount due to the Swap
Counterparty under a Swap Contract for any Distribution Date unless and until
the related interest payment on the Class A-4FL Regular Interest or Class A-MFL
Regular Interest, as applicable, 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 Floating Rate Accounts, Certificate Account or Distribution
Account and will not constitute Additional Trust Fund Expenses. No party
hereunder shall advance any Floating Swap Payments. Simultaneously with the
delivery to the Certificateholders, the Trustee shall (1) make available to the
Swap Counterparty the Distribution Date Statement and (2) make available or
deliver to the Swap Counterparty copies of any other reports or notices
delivered to the Class A-4FL and Class A-4FL Component Certificateholders or the
Class A-MFL and Class A-MFL Component Certificateholders as and to the extent
required by the Swap Contract.
Section 3.31. Put Agreements.
(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 Class A-4M Put Agreement and Class A-MM Put
Agreement with the Class A-4M Liquidity Provider and Class A-MM Liquidity
Provider, respectively. The Paying Agent shall perform the duties and
obligations of the Trustee under the Put Agreements. The Trustee (or the Paying
Agent on the behalf of the Trustee) shall at all times enforce the Trust Fund's
rights under the Put Agreements.
(b) The Trustee is hereby directed to (i) execute and deliver, on
behalf of the Trust Fund, the Put Agreements and (ii) make the representations
and warranties, on behalf of the Trust Fund, to the Class A-4M Liquidity
Provider and the Class A-MM Liquidity Provider contained in the related Put
Agreement. The Trustee is hereby authorized to rely upon the representations and
warranties made by the Depositor herein, in connection with the representations
and warranties made by the Trustee as described in clause (ii) above.
(c) Upon receipt of notice from the Placement Agents pursuant to
Section 2(c)(v)(B) of the Placement Agreement or upon the non-receipt of funds
as specified Section 2(c)(v)(B) of the Placement Agreement, the Trustee shall
exercise the put option with respect to the Class A-4M Certificates or Class
A-MM Certificates, as applicable.
(d) Any costs and expenses related to any Put Agreement or the
Placement Agreement will not be payable from the Class A-4M Trust Account or
Class A-MM Trust Account, as applicable, or the Floating Rate Accounts,
Certificate Account or Distribution Account and will not constitute Additional
Trust Fund Expenses. No party hereunder shall advance any amounts payable to the
Class A-4M Liquidity Provider, the Class A-MM Liquidity Provider or the
Placement Agents; provided, however that the foregoing shall not limit any
party's ability to make a P&I Advance hereunder even if such P&I Advance may
ultimately result in payments made to the Class A-4M Liquidity Provider, the
Class A-MM Liquidity Provider or the Placement Agents through the allocation of
amounts in respect of the Class A-4FL Regular Interest or Class A-MFL Regular
Interest.
Section 3.32. Litigation Control.
(a) The Special Servicer shall with respect to Specially Serviced
Mortgage Loans and at the direction of the Controlling Class Representative any
other Mortgage Loan, (1) direct, manage, prosecute and/or defend any action
brought by a Mortgagor against the Trust Fund and/or the Special Servicer and
(2) represent the interests of the Trust Fund in any litigation relating to the
rights and obligations of the Mortgagor or the Trust Fund, or the enforcement of
the obligations of a Mortgagor, under the related Mortgage Loan documents
("Trust-Related Litigation").
(b) To the extent the Master Servicer is named in Trust-Related
Litigation, and the Trust Fund or Special Servicer is not named, in order to
effectuate the role of the Special Servicer as contemplated by the immediately
preceding paragraph, the Master Servicer shall (1) notify the Special Servicer
of such Trust-Related Litigation within ten (10) days of the Master Servicer
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 Fund replace the Master Servicer as the appropriate party
to the lawsuit; and (4) so long as the Master Servicer 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 Fund
in such Trust-Related Litigation, including but not limited to the selection of
counsel, provided however, if there are claims against the Master Servicer and
the Master Servicer has not determined that separate counsel is required for
such claims, such counsel shall be reasonably acceptable to the Master Servicer.
(c) Notwithstanding the right of the Special Servicer to represent
the interests of the Trust Fund in Trust-Related Litigation, and subject to the
rights of the Special Servicer to direct the Master Servicer's actions in this
Section 3.32 below, the Master Servicer shall retain the right to make
determinations relating to claims against the Master Servicer, including but not
limited to the right to engage separate counsel in the Master Servicer's
reasonable discretion, the cost of which shall be subject to indemnification
pursuant to this Section 3.32.
(d) Further, nothing in this section shall require the Master
Servicer to take or fail to take any action which, in the Master Servicer's good
faith and reasonable judgment, may (1) result in an Adverse REMIC Event or
Adverse Grantor Trust Event or (2) subject the Master Servicer to liability or
materially expand the scope of the Master Servicer's obligations under this
Agreement.
(e) Notwithstanding the Master Servicer's right to make
determinations relating to claims against the Master Servicer, the Special
Servicer shall have the right at any time to (1) direct the Master Servicer to
settle any claims brought against the Trust Fund, including claims asserted
against the Master Servicer (whether or not the Trust Fund or the Special
Servicer is named in any such claims or Trust-Related Litigation) and (2)
otherwise reasonably direct the actions of the Master Servicer relating to
claims against the Master Servicer (whether or not the Trust Fund 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, or is not likely to result in a finding of liability or wrongdoing on
the part of the Master Servicer, (B) the cost of such settlement or any
resulting judgment is and shall be paid by the Trust Fund, (C) the Master
Servicer is and shall be indemnified pursuant to Section 6.03 hereof for all
costs and expenses of the Master Servicer incurred in defending and settling the
Trust-Related Litigation and for any judgment, (D) any such action taken by the
Master Servicer at the direction of the Special Servicer be deemed (as to the
Master Servicer) to be in compliance with the Servicing Standard and (E) the
Special Servicer provides the Master Servicer with assurance reasonably
satisfactory to the Master Servicer as to the items in clauses (A), (B) and (C).
(f) In the event both the Master Servicer and the Special Servicer
or Trust Fund are named in litigation, the Master Servicer and the Special
Servicer shall cooperate with each other to afford the Master Servicer and the
Special Servicer the rights afforded to such party in this Section 3.32.
(g) Notwithstanding anything to the contrary herein, if the Master
Servicer controls certain Trust-Related Litigation on behalf of the Trust Fund
with respect to performing, serviced Mortgage Loans in accordance with this
Section 3.32, the Special Servicer shall retain the right to make determinations
relating to claims against the Special Servicer, including but not limited to
the right to engage separate counsel in the Special Servicer's reasonable
discretion, the cost of which shall be subject to indemnification pursuant to
Section 6.03. Nothing in this Section 3.32 shall be intended to limit the rights
of the Controlling Class Representative under any other section of this
Agreement.
(h) The Special Servicer or the Master Servicer, as applicable, will
have the right to direct, manage, prosecute and/or defend any and all litigation
and/or claims relating to (a) the enforcement of the obligations of a Mortgagor
under the related Mortgage Loan documents and (b) any claim or action brought by
a Mortgagor against the Trust Fund; provided that (i) in the event that any
action, suit, litigation or proceeding names the Trustee in its individual
capacity, or in the event that any judgment is rendered against the Trustee in
its individual capacity, the Trustee, upon prior written notice to the Special
Servicer or the Master Servicer, as applicable, may retain counsel and appear in
any such proceeding on its own behalf in order to protect and represent its
interests (but not to otherwise direct, manage or prosecute such litigation or
claim), (ii) in the event of any action, suit, litigation or proceeding, other
than an action, suit, litigation or proceeding relating to the enforcement of
the obligations of a Mortgagor under the related Mortgage Loan documents or
otherwise relating to a Mortgage Loan or Mortgaged Property, neither the Master
Servicer nor the Special Servicer shall, without the prior written consent of
the Trustee, (A) initiate any action, suit, litigation or proceeding in the name
of the Trustee, whether in such capacity or individually, (B) engage counsel to
represent the Trustee, or (C) prepare, execute or deliver any government
filings, forms, permits, registrations or other documents or take any other
similar action with the intent to cause, and that actually causes, the Trustee
to be registered to do business in any state (provided that none of the Master
Servicer, the Special Servicer or the Trustee shall be responsible for any delay
due to the unwillingness of the Trustee to grant such consent), and (iii) in the
event that any court finds that the Trustee is a necessary party in respect of
any action, suit, litigation or proceeding relating to or arising from this
Agreement or any Mortgage Loan, the Trustee shall have the right to retain
counsel and appear in any such proceeding on its own behalf in order to protect
and represent its interest (but not to otherwise direct, manage or prosecute
such litigation or claim); provided, however, that nothing in this paragraph
shall be interpreted to preclude either the Master Servicer or the Special
Servicer from initiating any action, suit, litigation or proceeding in its name
as a representative of the Trustee or Trust Fund.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01. Distributions.
(a) On each Distribution Date the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account, after payment of amounts payable from the Distribution Account in
accordance with Section 3.05(b)(ii) through (vii), and deemed distributions from
REMIC I to REMIC II pursuant to Section 4.01(h), for the following purposes and
in the following order of priority, in each case to the extent of the remaining
portion of the Available Distribution Amount:
(i) concurrently, (i) from the Loan Group 1 Available Distribution
Amount, to distributions of interest to the Holders of the Class A-1,
Class A-2, Class A-PB and Class A-3 Certificates and the Class A-4FL
Regular Interest, up to an amount equal to, and pro rata as among such
Classes in accordance with, all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, if any,
(ii) from the Loan Group 2 Available Distribution Amount, to distributions
of interest to the Holders of the Class A-1A Certificates, up to an amount
equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates, if any, and (iii) from
the Loan Group 1 Available Distribution Amount and/or the Loan Group 2
Available Distribution Amount, to distributions of interest to the Holders
of the Class IO Certificates, all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, if any;
provided, however, if the Loan Group 1 Available Distribution Amount
and/or the Loan Group 2 Available Distribution Amount is insufficient to
pay in full the total amount of Distributable Certificate Interest, as
provided above, payable in respect of any Class of Senior Certificates on
such Distribution Date, then the entire Available Distribution Amount
shall be applied to make distributions of interest to the Holders of the
respective Classes of the Senior Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, all Distributable
Certificate Interest in respect of each such Class for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(ii) to distributions of principal to the Holders of the Class A-PB
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the Class A-1A
Certificates have been retired, the entire Loan Group 2 Principal
Distribution Amount for such Distribution Date remaining after making any
distributions required pursuant to clause (viii) below on such
Distribution Date, until the Certificate Principal Balance of the Class
A-PB Certificates is reduced to the Class A-PB Planned Principal Balance;
(iii) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned Principal Balance,
to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Loan Group 1 Principal Distribution
Amount and, after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, the entire Loan Group 2 Principal
Distribution Amount for such Distribution Date remaining after making any
distributions required pursuant to clause (viii) below on such
Distribution Date, less any portion thereof distributed in respect of the
Class A-PB Certificates on such Distribution Date;
(iv) after the Class Principal Balance of the Class A-PB
Certificates has been reduced to the Class A-PB Planned Principal Balance
and after the Class Principal Balance of the Class A-1 Certificates has
been reduced to zero, to distributions of principal to the Holders of the
Class A-2 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-2 Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Loan Group 1 Principal
Distribution Amount and, after the Class Principal Balance of the Class
A-1A Certificates has been reduced to zero, the entire Loan Group 2
Principal Distribution Amount for such Distribution Date remaining after
making any distributions required pursuant to clause (viii) below on such
Distribution Date (in each case, net of any portion thereof distributed on
such Distribution Date to the Holders of the Class A-PB Certificates and
the Class A-1 Certificates pursuant to clauses (ii) and (iii) above);
(v) after distributions of principal have been made from the Loan
Group 1 Principal Distribution Amount to the Class A-PB Certificates, the
Class A-1 Certificates and the Class A-2 Certificates as set forth in
clauses (ii), (iii) and (iv) above, to distributions of principal to the
holders of the Class A-PB Certificates in an amount (not to exceed the
then outstanding Class Principal Balance of the Class A-PB Certificates)
equal to the remaining Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Class A-1A Certificates have been
retired, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Class A-1A Certificates have been made on such
Distribution Date, in each case, less any portion thereof distributed in
respect of the Class A-PB Certificates, the Class A-1 Certificates and the
Class A-2 Certificates on such Distribution Date;
(vi) after the Class Principal Balance of each of the Class A-PB,
Class A-1 and Class A-2 Certificates has been reduced to zero, to
distributions of principal to the Holders of the Class A-3 Certificates,
in an amount (not to exceed the Class Principal Balance of the Class A-3
Certificates outstanding immediately prior to such Distribution Date)
equal to the entire Loan Group 1 Principal Distribution Amount and, after
the Class Principal Balance of the Class A-1A Certificates has been
reduced to zero, the entire Loan Group 2 Principal Distribution Amount for
such Distribution Date remaining after making any distributions required
pursuant to clause (viii) below on such Distribution Date (in each case,
net of any portion thereof distributed on such Distribution Date to the
Holders of the Class A-PB, Class A-1 and Class A-2 Certificates pursuant
to clauses (ii), (iii), (iv) and (v) above);
(vii) after distributions of principal have been made from the Loan
Group 1 Principal Distribution Amount to the Class A-PB Certificates, the
Class A-1 Certificates, the Class A-2 Certificates and the Class A-3
Certificates as set forth in clauses (ii), (iii), (iv), (v) and (vi)
above, to distributions of principal to the holders of the Class A-4FL
Regular Interest, in an amount (not to exceed the then outstanding
Certificate Principal Balance of the Class A-4FL Regular Interest) equal
to the remaining Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Class A-1A Certificates have been
retired, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Class A-1A Certificates have been made on such
Distribution Date, in each case, less any portion thereof distributed in
respect of the Class A-PB Certificates, the Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates on such Distribution
Date;
(viii) to distributions of principal to the Holders of the Class
A-1A Certificates, in an amount (not to exceed the Class Principal Balance
of the Class A-1A Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Loan Group 2 Principal Distribution
Amount and, after the Class Principal Balances of the Class A-PB, Class
A-1, Class A-2 and Class A-3 Certificates and the Class A-4FL Regular
Interest have been reduced to zero, the entire Loan Group 1 Principal
Distribution Amount for such Distribution Date remaining after making any
distributions required pursuant to clauses (ii), (iii), (iv), (v), (vi)
and (vii) above;
(ix) to distributions to the Holders of the Class A-PB Certificates,
the Class A-1 Certificates, the Class A-2 Certificates, the Class A-3
Certificates and the Class A-1A Certificates and the Class A-4FL Regular
Interest, pro rata as among such Classes, in accordance with, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional
Trust Fund Expenses, if any, previously allocated to each such Class and
not previously reimbursed;
(x) to distributions of interest to the Holder of the Class A-MFL
Regular Interest, in an amount equal to all Distributable Certificate
Interest in respect of the Class A-MFL Regular Interest for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest pursuant to any prior clause of this
Section 4.01(a));
(xi) after the Class Principal Balances of the Class A Certificates
(other than the Class A-4FL Certificates) and the Class A-4FL Regular
Interest have been reduced to zero, to distributions of principal to the
Holder of the Class A-MFL Regular Interest, in an amount (not to exceed
the Class Principal Balance of the Class A-MFL Regular Interest
outstanding immediately prior to such Distribution Date) equal to the
Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of
any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xii) to distributions to the Holder of the Class A-MFL Regular
Interest, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Expenses, if any, previously allocated to the
Class A-MFL Regular Interest and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class A-J
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xiv) after the Class Principal Balances of the Class A
Certificates, the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been reduced to zero, to distributions of principal to the
Holders of the Class A-J Certificates, in an amount (not to exceed the
Class Principal Balance of the Class A-J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xv) to distributions to the Holders of the Class A-J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
A-J Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) after the Class Principal Balance of the Class A-J
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class B Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xviii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xx) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class C Certificates, in an amount (not to exceed the Class Principal
Balance of the Class C Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xxi) to distributions to the Holders of the Class C Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class D Certificates, in an amount (not to exceed the
Class Principal Balance of the Class D Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xxiv) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
D Certificates and not previously reimbursed;
(xxv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxvi) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xxvii) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed;
(xxviii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxix) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xxx) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
F Certificates and not previously reimbursed;
(xxxi) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class G Certificates, in an amount (not to exceed the
Class Principal Balance of the Class G Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xxxiii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class G Certificates and not previously reimbursed;
(xxxiv) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxv) after the Class Principal Balance of the Class G Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class H Certificates, in an amount (not to exceed the Class Principal
Balance of the Class H Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xxxvi) to distributions to the Holders of the Class H Certificates
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
H Certificates and not previously reimbursed;
(xxxvii) to distributions of interest to the Holders of the Class J
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class J Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxxviii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class J Certificates, in an amount (not to exceed the
Class Principal Balance of the Class J Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xxxix) to distributions to the Holders of the Class J Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
J Certificates and not previously reimbursed;
(xl) to distributions of interest to the Holders of the Class K
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class K Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xli) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class K Certificates, in an amount (not to exceed the Class Principal
Balance of the Class K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xlii) to distributions to the Holders of the Class K Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
K Certificates and not previously reimbursed;
(xliii) to distributions of interest to the Holders of the Class L
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class L Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xliv) after the Class Principal Balance of the Class K Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class L Certificates, in an amount (not to exceed the Class Principal
Balance of the Class L Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(xlv) to distributions to the Holders of the Class L Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
L Certificates and not previously reimbursed;
(xlvi) to distributions of interest to the Holders of the Class M
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class M Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xlvii) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class M Certificates, in an amount (not to exceed the
Class Principal Balance of the Class M Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates and/or the Class A-4FL Regular Interest or the Class A-MFL
Regular Interest pursuant to any prior clause of this Section 4.01(a));
(xlviii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all Realized
Losses and Additional Trust Fund Expenses, if any, previously allocated to
the Class M Certificates and not previously reimbursed;
(xlix) to distributions of interest to the Holders of the Class N
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class N Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(l) after the Class Principal Balance of the Class M Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class N Certificates, in an amount (not to exceed the Class Principal
Balance of the Class N Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(li) to distributions to the Holders of the Class N Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
N Certificates and not previously reimbursed;
(lii) to distributions of interest to the Holders of the Class O
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class O Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(liii) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class O Certificates, in an amount (not to exceed the Class Principal
Balance of the Class O Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(liv) to distributions to the Holders of the Class O Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
O Certificates and not previously reimbursed;
(lv) to distributions of interest to the Holders of the Class P
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class P Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(lvi) after the Class Principal Balance of the Class O Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class P Certificates, in an amount (not to exceed the Class Principal
Balance of the Class P Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(lvii) to distributions to the Holders of the Class P Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
P Certificates and not previously reimbursed;
(lviii) to distributions of interest to the Holders of the Class Q
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class Q Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(lix) after the Class Principal Balance of the Class P Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class Q Certificates, in an amount (not to exceed the Class Principal
Balance of the Class Q Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(lx) to distributions to the Holders of the Class Q Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
Q Certificates and not previously reimbursed;
(lxi) to distributions of interest to the Holders of the Class S
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class S Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(lxii) after the Class Principal Balance of the Class Q Certificates
has been reduced to zero, to distributions of principal to the Holders of
the Class S Certificates, in an amount (not to exceed the Class Principal
Balance of the Class S Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates and/or
the Class A-4FL Regular Interest or the Class A-MFL Regular Interest
pursuant to any prior clause of this Section 4.01(a));
(lxiii) to distributions to the Holders of the Class S Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
S Certificates and not previously reimbursed; and
(lxiv) to make distributions to the Holders of the Class R-II
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(h), over (B)
the aggregate distributions made in respect of the Regular Certificates on
such Distribution Date pursuant to clauses (i) through (lxiii) above;
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates have been reduced to zero,
but any two or more of the Class A-1 Certificates, the Class A-2 Certificates,
the Class A-3 Certificates, the Class A-PB Certificates and the Class A-1A
Certificates and the Class A-4FL Regular Interest remain outstanding, the
payments of principal to be made as contemplated by clauses (iii) through (viii)
above with respect to the Class A Certificates and the Class A-4FL Regular
Interest will be made to the Holders of the respective Classes of such Class A
Certificates and the Class A-4FL Regular Interest up to an amount equal to, and
pro rata as among such Classes in accordance with the respective then
outstanding Class Principal Balances of such Classes and without regard to the
Principal Distribution Amount for such Distribution Date and without regard to
Loan Group. Distributions in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Certificates or the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
All distributions of interest made in respect of the Class IO
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of interest that would be payable
on such Components on such Distribution Date based on the Strip Rate of such
Component multiplied by its Component Notional Amount, together with any amounts
thereof remaining unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account any amounts that represent Prepayment Premiums and/or
Yield Maintenance Charges actually collected on the Mortgage Loans and any REO
Loans during the related Collection Period and shall be deemed to distribute
such Prepayment Premiums and/or Yield Maintenance Charges from REMIC I to REMIC
II in respect of REMIC I Regular Interest LA-1 (whether or not such Class has
received all distributions of interest and principal to which it is entitled),
and then shall distribute each such Prepayment Premium and/or Yield Maintenance
Charge, as additional yield, as follows:
(i) First, to the Holders of the respective Classes of Regular
Certificates (other than any Excluded Class thereof) and the Class A-4FL
Regular Interest and Class A-MFL Regular Interest entitled to
distributions of principal pursuant to Section 4.01(a) on such
Distribution Date, up to an amount equal to, and pro rata based on, the
Additional Yield Amounts for each such Class of Certificates and the Class
A-4FL Regular Interest and Class A-MFL Regular Interest for such
Distribution Date; and
(ii) Second, to the Holders of the Class IO Certificates, to the
extent of any remaining portion of such Yield Maintenance Charges and/or
Prepayment Premiums.
Any distribution of Additional Yield Amounts in respect of the Class
A-4FL Regular Interest or Class A-MFL Regular Interest shall be paid to the Swap
Counterparty or to the Holders of the Class A-4FL Certificates or Class A-MFL
Certificates, as applicable, as specified in Sections 4.01(k) and 4.01(m).
On each Distribution Date, the Paying Agent shall withdraw from the
Additional Interest Account any amounts that represent (A) Additional Interest
actually collected during the related Collection Period on the ARD Loans and any
related REO Loans and shall distribute such amounts among the Holders of the
Class Z Certificates pro rata in accordance with the respective Percentage
Interests of such Class, and (B) interest and investment income, if any, earned
in respect of amounts held in the Additional Interest Account as provided in
Section 3.06, but only to the extent of the Net Investment Earnings with respect
to such account for the related Distribution Date, and shall distribute such
amount to the Trustee as additional compensation.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class 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 Paying Agent with
wiring instructions no less than 5 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, in the case of
a Sequential Pay Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate, but taking into account possible future
distributions of Additional Interest) will be made in a 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. Prior to any termination of the
Trust Fund pursuant to Section 9.01, any distribution that is to be made with
respect to a Certificate in reimbursement of a Realized Loss or Additional Trust
Fund Expense previously allocated thereto (in the case of the Class A-4FL
Certificates and Class A-4FL Component Certificates or Class A-MFL Certificates
and Class A-MFL Component Certificates, through the Class A-4FL Regular Interest
or Class A-MFL Regular Interest, respectively), which reimbursement is to occur
after the date on which such Certificate is surrendered as contemplated by the
preceding sentence, will be made by check mailed to the address of the
Certificateholder that surrendered such Certificate as such address last
appeared in the Certificate Register or to any other address of which the Paying
Agent was subsequently notified in writing. If such check is returned to the
Paying Agent, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the related Holder and deliver such check as it
shall deem appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Paying Agent has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Paying Agent shall, subject to applicable law,
distribute the unclaimed funds to the Holders of the Class R-II Certificates.
(d) 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 related 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 related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under a Letter of Representations
among the Depositor, the Trustee and the Initial Depository dated as of the
Closing Date.
(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Paying Agent receives written notification of or expects that the final
distribution with respect to any Class of Certificates (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Paying Agent shall, no later than 5 days
after the related Determination Date, mail to each Holder of record on such date
of such Class of Certificates a notice to the effect that:
(i) the Paying Agent 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
office of the Certificate Registrar or at 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(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, 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 former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Paying Agent shall, subject to applicable law,
distribute to the Holders of the Class R-II Certificates all unclaimed funds and
other assets which remain subject thereto.
(g) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments made or received under the Swap Contract and payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The Certificate Registrar
shall promptly provide the Paying Agent 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.
(h) The amount and timing of all distributions of interest and
principal made in respect of any Class of Sequential Pay Certificates (other
than the Class A-4FL Certificates and Class A-4FL Component Certificates or
Class A-MFL Certificates and Class A-MFL Component Certificates), the Class
A-4FL Regular Interest and the Class A-MFL Regular Interest on each Distribution
Date pursuant to Section 4.01(a) or Section 9.01 shall be deemed to have first
been distributed, with respect to the Sequential Pay Certificates (other than
the Class A-4FL and Class A-MFL Certificates) and the Class A-4FL Regular
Interest and Class A-MFL Regular Interest from REMIC I to REMIC II in respect of
its Corresponding REMIC I Regular Interest set forth in the Preliminary
Statement hereto; provided that all distributions made in respect of the Class
IO Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Component of such Class of Certificates
(other than the Class A-4FL and Class A-MFL Certificates) and the Class A-4FL
Regular Interest and Class A-MFL Regular Interest in accordance with the last
paragraph of Section 4.01(a), shall be deemed to have been first distributed
from REMIC I to REMIC II in respect of such Component's Corresponding REMIC I
Regular Interest.
(i) Reimbursements of Realized Losses and Additional Trust Fund
Expenses to the classes of Sequential Pay Certificates (other than the Class
A-4FL Certificates and Class A-4FL Component Certificates or Class A-MFL
Certificates and Class A-MFL Component Certificates) and the Class A-4FL Regular
Interest and Class A-MFL Regular Interest shall be allocated to the
corresponding REMIC I Regular Interests in the same manner as distributions of
principal specified above. All distributions of principal and reimbursements of
Realized Losses and Additional Trust Fund Expenses made in respect of any Class
of Sequential Pay Certificates (other than the Class A-4FL Certificates and
Class A-4FL Component Certificates or Class A-MFL Certificates and Class A-MFL
Component Certificates) and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest on each Distribution Date pursuant to Section 4.01(a) shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of its
Corresponding REMIC I Regular Interest set forth in the Preliminary Statement
hereto. Any amounts remaining in REMIC I on any Distribution Date after the
foregoing distributions shall be distributed to the Holders of the Class R-I
Certificates.
(j) [Reserved]
(k) (i) So long as a Class A-4FL Distribution Conversion is not in
effect, any Additional Yield Amounts paid on the Class A-4FL Regular Interest
shall be payable to the Swap Counterparty pursuant to the terms of the Class
A-4FL Swap Contract on a net basis in addition to the Net Swap Payment specified
in Section 3.30. On each Distribution Date for which a Class A-4FL Distribution
Conversion is in effect, any Additional Yield Amount paid on a Class A-4FL
Regular Interest shall be distributed to the Holders of the Class A-4FL
Component Certificates and the Holder of the Class A-4FL Certificates, pro rata,
based on their respective Class Principal Balances.
(ii) Any termination payments due to the Swap Counterparty under the
Class A-4FL Swap Contract shall be payable solely from (1) amounts, if
any, remaining in the Class A-4FL Floating Rate Account after all other
amounts have been paid to, or allocated in respect of, the Class A-4FL
Component Certificates (including all principal amounts outstanding) and
to the Class A-4FL Certificates (including all principal amounts
outstanding) pursuant to Section 4.01(p)(i)-(iii) and (2) 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).
(l) [Reserved]
(m) (i) So long as a Class A-MFL Distribution Conversion is not in
effect, any Additional Yield Amounts paid on the Class A-MFL Regular Interest
shall be payable to the Swap Counterparty pursuant to the terms of the Class
A-MFL Swap Contract on a net basis in addition to the Net Swap Payment specified
in Section 3.30. On each Distribution Date for which a Class A-MFL Distribution
Conversion is in effect, any Additional Yield Amount paid on a Class A-MFL
Regular Interest shall be distributed to the Holders of the Class A-MFL
Component Certificates and the Holders of the Class A-MFL Certificates, pro
rata, based on their respective Class Principal Balances.
(ii) Any termination payments due to the Swap Counterparty under the
Swap Contracts shall be payable solely from (1) amounts, if any, remaining
in the Class A-MFL Floating Rate Account after all other amounts have been
paid to, or allocated in respect of, the Class A-MFL Component
Certificates (including all principal amounts outstanding), and to the
Class A-MFL Certificates (including all principal amounts outstanding)
pursuant to Section 4.01(r)(i)-(iii) and (2) to the extent of any payment
made by a replacement swap counterparty to the Trust Fund with respect to
the related Swap Contract 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, or with respect to a Companion Loan
(other than the Non-Serviced Companion Loans) then included in a securitization,
on each P&I Advance Date, the Companion Paying Agent (based upon a statement of
the Master Servicer to be delivered to the Companion Paying Agent that specifies
the amount required to be deposited in the Companion Distribution Account and
any amounts payable to the Master Servicer from the Companion Distribution
Account pursuant to this Section 4.01(n)) shall make withdrawals and payments
from the Companion Distribution Account for the related Non-Serviced Companion
Loans in the following order of priority:
(i) to pay the Trustee or any of its directors, officers, employees
or agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05, to the extent any such amounts
relate solely to a Loan Pair;
(ii) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Sections 9.02(a) and 10.01(h), to the extent
any such costs relate to a Loan Pair;
(iii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iv) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the Companion Holder; and
(v) to clear and terminate the Companion Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
All distributions from a Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least 5 Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States of America. For the avoidance of doubt,
in no event shall the Companion Paying Agent withdraw from funds on deposit in
the Companion Distribution Account any amounts allocable to any of the Pari
Passu Companion Loans (other than Penalty Interest and late payment charges) to
be applied to, or to provide reimbursement for, any costs, expenses,
indemnities, losses or liabilities relating or allocable to any Mortgage Loan or
Companion Loan other than the related Mortgage Loan or its related Pari Passu
Companion Loans.
To the extent amounts are payable to or in respect of the Trust Fund
pursuant to this Section 4.01(n)(i) or (ii), the Companion Distribution Account
shall be considered an "outside reserve fund" within the meaning of the REMIC
Provisions, beneficially owned by the Companion Holder for federal income tax
purposes, who shall be taxable on all reinvestment income thereon, and who shall
be deemed to have received any amounts reimbursed from the Trust Fund to the
Companion Distribution Account.
(o) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of each Class of Sequential Pay Certificates (other
than the Class A-4FL Certificates, Class A-4FL Component Certificates, Class
A-MFL Certificates and Class A-MFL Component Certificates) and the Class A-4FL
Regular Interest and Class A-MFL Regular Interest (in order of priority) up to
an amount equal to all Realized Losses and Additional Trust Fund Expenses, if
any, previously deemed allocated to such Classes and unreimbursed after
application of the Available Distribution Amount for such Distribution Date.
Amounts paid from the Gain-on-Sale Reserve Account pursuant to the preceding
sentence shall first be deemed to have been distributed to the Corresponding
REMIC I Regular Interest in reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated thereto as provided in Section 4.01(i).
Amounts paid from the Gain-on-Sale Reserve Account will not reduce the
Certificate Principal Balances of the Classes of Sequential Pay Certificates
(other than the Class A-4FL Certificates, Class A-4FL Component Certificates,
Class A-MFL Certificates and Class A-MFL Component Certificates) or the Class
A-4FL Regular Interest or Class A-MFL Regular Interest receiving such
distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after
such distributions shall be applied to offset future Realized Losses and
Additional Trust Fund Expenses and upon termination of the Trust Fund, any
amounts remaining in the Gain-on-Sale Reserve Account shall be distributed to
the Class R-I Certificateholders.
(p) On each Distribution Date the Paying Agent shall, based on
information provided by the Master Servicer and the Special Servicer, apply
amounts on deposit in the Class A-4FL Floating Rate Account, for so long as the
Class Principal Balances of the Class A-4FL Certificates and the Class A-4FL
Component Certificates have not been reduced to zero, apply the Class A-4FL
Grantor Trust Available Distribution Amount in the following order of priority
(and amounts applied to the Class A-4FL Component Certificates will be deposited
or deemed deposited into the Class A-4M Trust Account):
(i) to the holders of the Class A-4FL Certificates and, as part of
the Class A-4M Trust Available Funds, to the Class A-4FL Component
Certificates, pro rata, in respect of interest, in each case up to an
amount equal to the Class A-4FL Certificate Interest Distribution Amount
and Class A-4M Trust Interest Distribution Amount, respectively;
(ii) to the holders of the Class A-4FL Certificates and, as part of
the Class A-4M Trust Available Funds, to the Class A-4FL Component
Certificates, pro rata (based on the Class Principal Balance of the Class
A-4FL Certificates and the aggregate Class Principal Balance of the Class
A-4FL Component Certificates), in respect of principal, up to an amount
equal to the Class A-4FL Principal Distribution Amount until the Class
Principal Balances of the Class A-4FL Certificates and the Class A-4FL
Component Certificates are reduced to zero;
(iii) to the holders of the Class A-4FL Certificates and, as part of
the Class A-4M Trust Available Funds, to the Class A-4FL Component
Certificates, pro rata, until all Realized Losses and Additional Trust
Fund Expenses previously allocated to the Class A-4FL Certificates and the
Class A-4M Trust (and thereafter to the Class A-4FL Component
Certificates) (as a result of the allocation of the Realized Losses and
Additional Trust Fund Expenses to the Class A-4FL Regular Interest) but
not previously reimbursed, have been reimbursed in full;
(iv) to pay any termination payments, if any, to the Swap
Counterparty with respect to the Class A-4FL Regular Interest; and
(v) pro rata (based on the Class Principal Balance of the Class
A-4FL Certificates and the aggregate Class Principal Balance of the Class
A-4FL Component Certificates), any remaining amount to the holders of the
Class A-4FL Certificates and, as part of the Class A-4M Trust Available
Funds, to the Class A-4FL Component Certificates.
(q) On each Distribution Date the Paying Agent shall, based on
information provided by the Master Servicer and the Special Servicer, apply
amounts on deposit in the Class A-4M Trust Account, for so long as the Class
Principal Balances of the Class A-4M Certificates and the Class A-4MS
Certificates have not been reduced to zero and apply the Class A-4M Trust
Available Funds in the following order of priority:
(i) to the holders of the Class A-4M Certificates and Class A-4MS
Certificates in respect of interest, pro rata, up to an amount equal to
the Class A-4M Interest Distribution Amount and Class A-4MS Interest
Distribution Amount, respectively;
(ii) in respect of principal, pro rata, between the Class A-4M
Certificates and the Class A-4MS Certificates up to an amount equal to the
Class A-4FL Component Certificate Trust Principal Distribution Amount,
until the Class Principal Balances of the Class A-4M Certificates and
Class A-4MS Certificates are reduced to zero; and
(iii) to the holders of the Class A-4M Certificates and the Class
A-4MS Certificates, pro rata, as reimbursement of all Realized Losses and
Additional Trust Fund Expenses, to the extent not previously reimbursed,
allocated to the Class A-4FL Component Certificates (as a result of the
allocation of the Realized Losses and Additional Trust Fund Expenses to
the Class A-4FL Regular Interest) until reimbursed in full.
(r) On each Distribution Date the Paying Agent shall, based on
information provided by the Master Servicer and the Special Servicer, apply
amounts on deposit in the Class A-MFL Floating Rate Account, for so long as the
Class Principal Balances of the Class A-MFL Certificates and the Class A-MFL
Component Certificates have not been reduced to zero, apply the Class A-MFL
Grantor Trust Available Distribution Amount in the following order of priority
(and amounts applied to the Class A-MFL Component Certificates will be deposited
or deemed deposited into the Class A-MM Trust Account):
(i) to the holders of the Class A-MFL Certificates and, as part of
the Class A-MM Trust Available Funds, to the Class A-MFL Component
Certificates, pro rata, in respect of interest, in each case up to an
amount equal to the Class A-MFL Certificate Interest Distribution Amount
and Class A-MM Trust Interest Distribution Amount, respectively;
(ii) to the holders of the Class A-MFL Certificates and, as part of
the Class A-MM Trust Available Funds, to the Class A-MFL Component
Certificates, pro rata (based on the Class Principal Balance of the Class
A-MFL Certificates and the aggregate Class Principal Balance of the Class
A-MFL Component Certificates), in respect of principal, up to an amount
equal to the Class A-MFL Principal Distribution Amount until the Class
Principal Balances of the Class A-MFL Certificates and the Class A-MFL
Component Certificates are reduced to zero;
(iii) to the holders of the Class A-MFL Certificates and, as part of
the Class A-MM Trust Available Funds, to the Class A-MFL Component
Certificates, pro rata, until all Realized Losses and Additional Trust
Fund Expenses previously allocated to the Class A-MFL Certificates and the
Class A-MM Trust (and thereafter to the Class A-MFL Component
Certificates) (as a result of the allocation of the Realized Losses and
Additional Trust Fund Expenses to the Class A-MFL Regular Interest) but
not previously reimbursed, have been reimbursed in full;
(iv) to pay any termination payments, if any, to the Swap
Counterparty with respect to the Class A-MFL Regular Interest; and
(v) pro rata (based on the Class Principal Balance of the Class
A-MFL Certificates and the aggregate Class Principal Balance of the Class
A-MFL Component Certificates), any remaining amount to the holders of the
Class A-MFL Certificates and, as part of the Class A-MM Trust Available
Funds, to the Class A-MFL Component Certificates.
(s) On each Distribution Date the Paying Agent shall, based on
information provided by the Master Servicer and the Special Servicer, apply
amounts on deposit in the Class A-MM Trust Account, for so long as the Class
Principal Balances of the Class A-MM Certificates and the Class A-MMS
Certificates have not been reduced to zero and apply the Class A-MM Trust
Available Funds in the following order of priority:
(i) to the holders of the Class A-MM Certificates and Class A-MMS
Certificates in respect of interest, pro rata, up to an amount equal to
the Class A-MM Interest Distribution Amount and Class A-MMS Interest
Distribution Amount, respectively;
(ii) in respect of principal, pro rata, between the Class A-MM
Certificates and the Class A-MMS Certificates up to an amount equal to the
Class A-MFL Component Certificate Principal Distribution Amount, until the
Class Principal Balances of the Class A-MM Certificates and Class A-MMS
Certificates are reduced to zero; and
(iii) to the holders of the Class A-MM Certificates and the Class
A-MMS Certificates, pro rata, as reimbursement of all Realized Losses and
Additional Trust Fund Expenses, to the extent not previously reimbursed,
allocated to the Class A-MFL Component Certificates (as a result of the
allocation of the Realized Losses and Additional Trust Fund Expenses to
the Class A-MFL Regular Interest) until reimbursed in full.
(t) On each Distribution Date that a Class A-4M or Class A-MM
Certificate is outstanding, the Paying Agent shall pay to the Class A-4M
Liquidity Provider or Class A-MM Liquidity Provider, as applicable, the Class
A-4M Put Premium or Class A-MM Put Premium, as applicable, in each case in
accordance with the related Put Agreement, in accordance with Section 3.05(e)
and (f).
(u) On every Distribution Date subsequent to a Collection Period
during which a Class A-4M or Class A-MM Certificate has been remarketed, the
Paying Agent shall pay to the Placement Agents the Class A-4M Placement Fee
and/or the Class A-MM Placement Fee, as applicable, in each case in accordance
with the Placement Agreement.
Section 4.02. Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall make available on
the Trustee's Internet Website or, upon written request, forward by mail (or by
electronic transmission acceptable to the recipient) to each Certificateholder,
each initial Certificate Owner and (upon written request made to the Trustee),
each subsequent Certificate Owner (as identified to the reasonable satisfaction
of the Trustee), the Depositor, the Master Servicer, the Special Servicer, the
Companion Holders, the Underwriters, the Swap Counterparty and each Rating
Agency, a statement (a "Distribution Date Statement"), as to the distributions
made on such Distribution Date, based on information provided to it by the
Master Servicer and the Special Servicer, setting forth:
(i) the Record Date, the Determination Date, the Distribution Date
and dates of the Interest Accrual Period for each Class of Certificates;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates and the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates
and Class A-MFL Component Certificates in reduction of the Class Principal
Balance thereof;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates and the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates
and Class A-MFL Component Certificates allocable to Distributable
Certificate Interest or the Class A-4FL Interest Distribution Amount and
Class A-MFL Interest Distribution Amount, as applicable, and, with respect
to the Class A-4FL Certificates and Class A-MFL Certificates notification
that the amount of interest distribution thereon is equal to the interest
distribution amount with respect to the Class A-4FL Regular Interest or
Class A-MFL Regular Interest, as applicable, that is being paid as a
result of a Class A-4FL Distribution Conversion or Class A-MFL
Distribution Conversion, as applicable, and the applicable Interest
Distribution Amount;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates and the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates
and Class A-MFL Component Certificates allocable to Prepayment Premiums
and/or Yield Maintenance Charges;
(v) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates and the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates
and Class A-MFL Component Certificates in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses;
(vi) the Available Distribution Amount and the Class A-4FL Available
Funds and Class A-MFL Available Funds for such Distribution Date and the
sources of such amount;
(vii) (a) the aggregate amount of P&I Advances made in respect of
such Distribution Date on a loan by loan basis with respect to the
Mortgage Pool and on an aggregate basis with respect to each Loan Group
pursuant to Section 4.03(a), including, without limitation, any amounts
applied pursuant to Section 4.03(a)(ii), and the aggregate amount of
unreimbursed P&I Advances with respect to the Mortgage Pool and each Loan
Group that had been outstanding at the close of business on the related
Determination Date and the aggregate amount of interest accrued and
payable to the Master Servicer or the Trustee in respect of such
unreimbursed P&I Advances in accordance with Section 4.03(d) as of the
close of business on the related Determination Date, (b) the aggregate
amount of Servicing Advances on a loan by loan basis with respect to the
Mortgage Pool and on an aggregate basis with respect to each Loan Group as
of the close of business on the related Determination Date and (c) to the
extent available, the foregoing information listed in this clause (vi)
with respect to P&I Advances by the related Non-Serviced Master Servicer
on the Non-Serviced Mortgage Loans;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
and each Loan Group outstanding as of the close of business on the related
Determination Date;
(ix) the aggregate Stated Principal Balance of the Mortgage Pool and
each Loan Group outstanding immediately before and immediately after such
Distribution Date;
(x) the number, aggregate unpaid principal balance, weighted average
remaining term to maturity or Anticipated Repayment Date, each Mortgage
Rate and weighted average Mortgage Rate of the Mortgage Loans in the
Mortgage Pool and each Loan Group as of the close of business on the
related Determination Date presented in distributional groups and/or
incremental ranges acceptable to the Depositor in its reasonable
discretion;
(xi) the number of Mortgage Loans and the aggregated Stated
Principal Balance (immediately after such Distribution Date) (and with
respect to each delinquent Mortgage Loan, a brief description of the
reason for delinquency, if known by the Master Servicer or Special
Servicer, as applicable, and provided to the Trustee) of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent more
than 89 days, (D) as to which foreclosure proceedings have been commenced,
(E) with respect to each Specially Serviced Mortgage Loan, the Mortgaged
Property type and a brief description of the reason for delinquency and
the Mortgage Loan's status, if known by the Master Servicer or Special
Servicer, as applicable, and provided to the Trustee, (F) to the actual
knowledge of the Master Servicer or Special Servicer in bankruptcy
proceedings and (G) any material changes to the information specified in
Item 1100(b)(5) of Regulation AB, as amended;
(xii) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, and (C) a brief
description of any loan modification, extension or waiver (identifying the
relevant loan number);
(xiii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (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 Realized
Loss in connection with such Liquidation Event;
(xiv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (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 Realized Loss in respect of the related REO
Property, in connection with such Final Recovery Determination;
(xv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Certificates and the Class
A-4FL Certificates, Class A-4FL Component Certificates, Class A-MFL
Certificates and Class A-MFL Component Certificates for such Distribution
Date;
(xvi) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates and the Class A-4FL Certificates, Class
A-4FL Component Certificates, Class A-MFL Certificates and Class A-MFL
Component Certificates after giving effect to the distributions made on
such Distribution Date;
(xvii) the Pass-Through Rate for each Class of Regular Certificates
for such Distribution Date and the Class A-4FL Regular Interest and Class
A-MFL Regular Interest;
(xviii) the Pass-Through Rate for the Class A-4M Certificates;
(xix) the Pass-Through Rate for the Class A-4FL Certificates;
(xx) the Pass-Through Rate for the Class A-MM Certificates;
(xxi) the Pass-Through Rate for the Class A-MFL Certificates;
(xxii) the Principal Distribution Amount;
(xxiii) the Principal Distribution Amount, the Loan Group 1
Principal Distribution Amount and the Loan Group 2 Principal Distribution
Amount for such Distribution Date, separately identifying the respective
components thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related Collection
Period, the loan number for the related Mortgage Loan and the amount of
such prepayment or other collection of principal);
(xxiv) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xxv) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated to each Class of Certificates on such
Distribution Date;
(xxvi) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO Certificates) and the Notional
Amounts of the Class IO Certificates immediately before and immediately
after such Distribution Date, separately identifying any reduction therein
due to the allocation of Realized Losses and Additional Trust Fund
Expenses on such Distribution Date;
(xxvii) the Certificate Factor for each Class of Regular
Certificates and the Class A-4FL Certificates, Class A-4FL Component
Certificates, Class A-MFL Certificates and Class A-MFL Component
Certificates immediately following such Distribution Date;
(xxviii) the aggregate amount of interest on P&I Advances paid to
the Master Servicer and the Trustee (and, if applicable, the related
Non-Serviced Master Servicer), with respect to the Mortgage Pool and each
Loan Group during the related Collection Period in accordance with Section
4.03(d);
(xxix) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer, the Trustee and the Special Servicer (and, if
applicable, the related Non-Serviced Master Servicer or the related
Non-Serviced Special Servicer), during the related Collection Period in
accordance with Section 3.03(d) with respect to the Mortgage Pool and each
Loan Group;
(xxx) the aggregate amount of (i) Servicing Fees paid to the Master
Servicer, (ii) the Servicing Fees paid to the Special Servicer, and (iii)
Trustee Fees paid to the Trustee during the related Collection Period;
(xxxi) the loan number for each Required Appraisal Mortgage Loan and
any related Appraisal Reduction Amount as of the related Determination
Date;
(xxxii) the loan number for each Mortgage Loan which has experienced
a breach of the representations and warranties, including identification
of the applicable representation and warranty, given with respect to a
Mortgage Loan by the applicable Mortgage Loan Seller, as provided by the
Master Servicer or the Depositor;
(xxxiii) the original and thereafter, the current credit support
levels for each Class of Regular Certificates and the Class A-4FL
Certificates and Class A-MFL Certificates;
(xxxiv) the original and thereafter, the current ratings for each
Class of Regular Certificates and the Class A-4FL Certificates, Class
A-4FL Component Certificates, Class A-MFL Certificates and Class A-MFL
Component Certificates;
(xxxv) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges with respect to the Mortgage Pool and each Loan Group
collected during the related Collection Period;
(xxxvi) the amounts, if any, actually distributed with respect to
the Class Z Certificates, Class R-I Certificates or Class R-II
Certificates on such Distribution Date;
(xxxvii) the value of any REO Property included in the Trust Fund as
of the end of the related Collection Period, based on the most recent
Appraisal or valuation;
(xxxviii) identification of any Mortgage Loan which has been
substituted as a result of a breach of a representation and warranty;
(xxxix) LIBOR as calculated for the related Distribution Date and
the next succeeding Distribution Date;
(xl) the amounts received and paid in respect of the related Swap
Contract;
(xli) identification of any failure to meet the Swap Counterparty
Threshold Ratings or a Swap Default as of the close of business on the
last day of the immediately preceding calendar month with respect to the
Swap Contract;
(xlii) 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 failure to meet the Swap
Counterparty Threshold Ratings;
(xliii) the amount of, and identification of, any interest due
thereon (including without limitation, any termination payment received in
connection with the Swap Contract); and
(xliv) the amount of any Class A-4M Placement Fees, Class A-4M Put
Premium, Class A-MM Placement Fees or Class A-MM Put Premium paid.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiii), and (xxix)
and (xxxvii) above, insofar as the underlying information is solely within the
control of the Special Servicer, the Trustee and the Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
The Trustee shall, and the Master Servicer may, but is not required
to, make available on or prior to the Distribution Date in each month to the
general public (i) the Distribution Date Statement via their respective Internet
Websites, (ii) as a convenience for interested parties, the Prospectus
Supplement, the Prospectus and this Agreement on the Trustee's and/or the Master
Servicer's respective Internet Websites and (iii) any other items at the request
of the Depositor via the Trustee's and/or the Master Servicer's respective
Internet Websites. In addition, the Trustee shall make available each month, on
each Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan
Periodic Update File, the CMSA Loan Setup File, the CMSA Bond File, and the CMSA
Collateral Summary File to the general public on its Internet Website. The
Trustee shall make available each month, on each Distribution Date, (i) the
Restricted Servicer Reports, (ii) the CMSA Property File and the CMSA Financial
File and (iii) the CMSA Reconciliation of Funds Report to any Privileged Person
and to any other Person upon the direction of the Depositor.
Absent manifest error, none of the Master Servicer or the Special
Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a Mortgagor or third party (including, without
limitation, the related Non-Serviced Master Servicer, the related Non-Serviced
Special Servicer and the related Non-Serviced Trustee) that is included in any
reports, statements, materials or information prepared or provided by the Master
Servicer or the Special Servicer, as applicable. The Trustee shall not be
responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section 4.02(a).
Neither the Trustee, the Master Servicer nor the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided by
a Mortgagor or third party (including, without limitation, the related
Non-Serviced Master Servicer, the related Non-Serviced Special Servicer and the
related Non-Serviced Trustee).
Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon request, send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i), (ii), (iii) and (iv) of the description of
"Distribution Date Statement" above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust Fund. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of or, provide
electronically or cause the provision electronically of, such statements,
reports and/or other written information to such Certificate Owner upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
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 the necessary underlying information from the Special Servicer or
Master 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 or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) Not later than 2:00 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall furnish
to the Trustee, the Depositor, the Special Servicer and the Underwriters, by
electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), with a hard
copy (other than in the case of the Trustee) of such transmitted information to
follow promptly, an accurate and complete CMSA Loan Periodic Update File
providing the required information for the Mortgage Loans as of such
Determination Date. The Depositor shall provide the information necessary for
the CMSA Loan Setup File on the Closing Date. Not later than 2:00 p.m. New York
City time on the second Business Day preceding each Distribution Date, the
Master Servicer shall deliver to the Trustee notice of the Discount Rate
applicable to each Principal Prepayment received in the related Collection
Period.
In the performance of its obligations set forth in Section 4.05, and
its other duties hereunder, the Trustee (including in its capacity as Paying
Agent) may conclusively rely on reports provided to it by the Master Servicer,
and the Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of information to
be furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the related Non-Serviced Master Servicer, the related Non-Serviced
Special Servicer and/or the related Non-Serviced Trustee, the Master Servicer
shall have no obligation to provide such information until it has received such
information from such party, shall not be in default hereunder due to a delay in
providing the CMSA Loan Periodic Update File caused by the such party's failure
to timely provide any report required under this Agreement and may, absent
manifest error, conclusively rely on the reports to be provided by the such
party.
Section 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts in the Certificate Account
received after the end of the related Collection Period or otherwise held for
future distribution to Certificateholders in subsequent months in discharge of
its obligation to make P&I Advances or (ii) subject to Section 4.03(c) below,
remit from its own funds to the Paying Agent for deposit into the Distribution
Account, an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date. The Master Servicer may also
make P&I Advances in the form of any combination of clauses (i) and (ii) above
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 Master Servicer's records and replaced
by the Master Servicer by deposit in the Certificate Account on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York
City time, on any P&I Advance Date, the Master Servicer shall not have made any
P&I Advance required to be made on such date pursuant to this Section 4.03(a)
(and shall not have delivered to the Trustee the requisite Officer's Certificate
and documentation related to a determination of nonrecoverability of a P&I
Advance), then the Trustee shall provide notice of such failure to a Servicing
Officer of the Master Servicer by facsimile transmission sent to telecopy (704)
715-0036 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at (704) 593-7836 or (704) 593-7867 (or
such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 4:00 p.m., New York City
time, on such P&I Advance Date. If the Trustee does not receive the full amount
of such P&I Advances by 10:00 a.m., New York City time, on the related
Distribution Date, then, subject to Section 4.03(c), (i) the Trustee shall, no
later than 11:00 a.m., New York City time, on such related Distribution Date
make the portion of such P&I Advances that was required to be, but was not, made
by the Master Servicer on such P&I Advance Date, and (ii) the provisions of
Sections 7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) and Section 4.03(e) below, equal the aggregate of all Periodic
Payments (other than Balloon Payments) and any Assumed Scheduled Payments, net
of related Servicing Fees (and, in the case of the Non-Serviced Mortgage Loan,
servicing fees due to the related Non-Serviced Master Servicer, to the extent
not otherwise so paid pursuant to the related Intercreditor Agreement) due or
deemed due, as the case may be, in respect of the Mortgage Loans (including,
without limitation, Balloon Mortgage Loans delinquent as to their respective
Balloon Payments) and any REO Loans on their respective Due Dates during (or
deemed to be during) the related Collection Period in each case, to the extent
such amount was not paid by or on behalf of the related Mortgagor or otherwise
collected (including as net income from REO Properties) as of the close of
business on the last day of related Collection Period; provided that (x) if the
Periodic 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 the Periodic Payment due and
owing during the extension period is less than the related Assumed Scheduled
Payment, then the Master Servicer or the Trustee shall, as to such Mortgage Loan
only, advance only the amount of the Periodic Payment due and owing after taking
into account such reduction (net of related Servicing Fees) in the event of
subsequent delinquencies thereon; and (y) if it is determined that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Mortgage Loan,
then, with respect to the Distribution Date immediately following the date of
such determination and with respect to each subsequent Distribution Date for so
long as such Appraisal Reduction Amount exists with respect to such Required
Appraisal Mortgage Loan, the Master Servicer or the Trustee will be required in
the event of subsequent delinquencies to advance in respect of such Mortgage
Loan only an amount equal to the sum of (A) the amount of the interest portion
of the P&I Advance that would otherwise be required without regard to this
clause (y), minus the product of (1) such Appraisal Reduction Amount and (2) the
per annum Pass-Through Rate (i.e., for any month, one-twelfth of the
Pass-Through Rate) applicable to the Class of Certificates to which such
Appraisal Reduction Amount is allocated pursuant to Section 4.04(d) and (B) the
amount of the principal portion of the P&I Advance that would otherwise be
required without regard to this clause (y).
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer or the Special Servicer that the Master Servicer 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 and the Depositor on or before the related
P&I Advance Date, setting forth the basis for such determination, together with
any other information, including Appraisals (the cost of which may be paid out
of the Certificate Account pursuant to Section 3.05(a)) (or, if no such
Appraisal has been performed pursuant to this Section 4.03(c), a copy of an
Appraisal of the related Mortgaged Property performed within the twelve months
preceding such determination), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged
Properties, engineers' reports, environmental surveys and any similar reports
that the Master Servicer may have obtained consistent with the Servicing
Standard and at the expense of the Trust Fund, that support such determination
by the Master Servicer or the Special Servicer. As soon as reasonably practical
after making such determination, the Special Servicer shall report to the Master
Servicer the Special Servicer's determination as to whether each P&I Advance
made with respect to any previous Distribution Date or required 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. The Master Servicer
shall be entitled to conclusively rely on such determination by the Special
Servicer. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a P&I Advance,
if made, would be a Nonrecoverable Advance (and with respect to a P&I Advance,
the Trustee shall rely on the Master Servicer's determination that the P&I
Advance would be a Nonrecoverable Advance if the Trustee determines that it does
not have sufficient time to make such determination); provided, however, if the
Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer or the Special Servicer that such P&I
Advance would be Nonrecoverable Advance, the Trustee shall make such Advance
within the time periods required by Section 4.03(a) unless the Trustee, in
accordance with the standard of care set forth in Section 8.01(a), makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Trustee, in determining whether
or not a P&I Advance previously made is, or a proposed P&I Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards set forth
in Section 8.01(a) hereunder, including utilizing its good faith business
judgment to make such determination.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), subject to the next sentence, the Master Servicer shall be entitled to
pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of such P&I
Advance (to the extent made with its own funds) from the date made (provided,
however, no such interest shall accrue during any grace period under a Mortgage
Loan) to but not including the date of reimbursement, such interest to be
payable, subject to the terms of the related Intercreditor Agreement with
respect to the related Loan Pair, first out of late payment charges and Penalty
Interest received on the related Mortgage Loan or REO Property during the
Collection Period in which such reimbursement is made and then from general
collections on the Mortgage Loans then on deposit in the Certificate Account.
The Master Servicer shall reimburse itself or the Trustee, as applicable, for
any outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose have been received by the Master Servicer, and in no
event shall interest accrue in accordance with this Section 4.03(d) on any P&I
Advance as to which the corresponding payment of principal and interest or Late
Collection was received by the Master Servicer on or prior to the related P&I
Advance Date.
(e) In no event shall the Master Servicer or the Trustee make a P&I
Advance with respect to any Companion Loan.
(f) None of the Master Servicer, the Paying Agent or the Trustee
shall advance any amount due to be paid by the Swap Counterparty for
distribution to the Class A-4FL Certificates, Class A-4FL Component
Certificates, Class A-MFL Certificates or Class A-MFL Component Certificates.
Section 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses; Allocation of Certificate Deferred Interest; Allocation of
Appraisal Reduction Amounts.
(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Paying Agent shall allocate to
the respective Classes of Sequential Pay Certificates (other than the Class
A-4FL Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates
and Class A-MFL Component Certificates) and the Class A-4FL Regular Interest and
Class A-MFL Regular Interest the aggregate of all Realized Losses and Additional
Trust Fund Expenses that were incurred at any time following the Cut-Off Date
through the end of the related Collection Period and in any event that were not
previously allocated pursuant to this Section 4.04(a) on any prior Distribution
Date, but only to the extent that (i) the aggregate Certificate Principal
Balance of the Sequential Pay Certificates (other than the Class A-4FL
Certificates, Class A-4FL Component Certificates, Class A-MFL Certificates and
Class A-MFL Component Certificates) and the Class A-4FL Regular Interest and
Class A-MFL Regular Interest as of such Distribution Date (after taking into
account all of the distributions made on such Distribution Date pursuant to
Section 4.01), exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date (for purposes of this calculation only, not giving effect to any reductions
of the Stated Principal Balance for payments of principal collected on the
Mortgage Loans that were used to reimburse any Nonrecoverable Advances, to the
extent a Final Recovery Determination has not been made with respect thereto,
and Workout-Delayed Reimbursement Amounts pursuant to Sections 3.05(a)(vii) and
(viii) hereof): first, to the Class S Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; second, to the Class Q
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; third, to the Class P Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fourth, to the Class O
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fifth, to the Class N Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; sixth, to the Class M
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; seventh, to the Class L Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eighth, to the Class K
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; ninth, to the Class J Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; tenth, to the Class H
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eleventh, to the Class G Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; twelfth, to the Class
F Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; thirteenth, to the Class E Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; fourteenth, to the
Class D Certificates, until the remaining Class Principal Balance thereof has
been reduced to zero; fifteenth to the Class C Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; sixteenth, to the
Class B Certificates, until the remaining Class Principal Balance thereof has
been reduced to zero; seventeenth to the Class A-J Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; eighteenth
to the Class A-MFL Regular Interest (and therefore the Class A-MFL Certificates
and Class A-MFL Component Certificates, pro rata, based on remaining Class
Principal Balances) until the remaining Class Principal Balance thereof has been
reduced to zero; and nineteenth, pro rata (based on remaining Class Principal
Balances) to the Class A-1 Certificates, the Class A-2 Certificates, the Class
A-PB Certificates, the Class A-3 Certificates, the Class A-4FL Regular Interest
(and therefore the Class A-4FL Certificates and Class A-4FL Component
Certificates, pro rata, based on remaining Class Principal Balances), the Class
A-1A Certificates, until the Class Principal Balances thereof are reduced to
zero. Any allocation of Realized Losses and Additional Trust Fund Expenses to a
Class of Regular Certificates or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest shall be made by reducing the Class Principal Balance thereof
by the amount so allocated. All Realized Losses and Additional Trust Fund
Expenses, if any, allocated to the Class A-4FL Regular Interest or Class A-MFL
Regular Interest shall result in a corresponding reduction of the Class
Principal Balance of the Class A-4FL Certificates and Class A-4FL Component
Certificates or Class A-MFL Certificates and Class A-MFL Component Certificates,
respectively. All Realized Losses and Additional Trust Fund Expenses, if any,
allocated to a Class of Regular Certificates (or, with respect to the Class
A-4FL Certificates and Class A-4FL Component Certificates or Class A-MFL
Certificates and Class A-MFL Component Certificates, an amount corresponding to
any Realized Losses and Additional Trust Fund Expenses allocated to the Class
A-4FL Regular Interest or Class A-MFL Regular Interest, respectively, pro rata,
based on remaining Class Principal Balances) shall be allocated among the
respective Certificates of such Class in proportion to the Percentage Interests
evidenced thereby. All Realized Losses and Additional Trust Fund Expenses, if
any, that have not been allocated to the Regular Certificates and the Class
A-4FL Regular Interest or Class A-MFL Regular Interest as of the Distribution
Date on which the aggregate Certificate Principal Balance of such Regular
Certificates and the Principal Balance of the Class A-4FL Regular Interest or
Class A-MFL Regular Interest have been reduced to zero, shall be deemed
allocated to the Residual Certificates.
(b) On each Distribution Date, following the deemed distributions of
principal or reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the REMIC I Regular Interests
pursuant to Section 4.01(h), the REMIC I Principal Balance of the Corresponding
REMIC I Regular Interests (after taking account of such deemed distributions)
shall be reduced as a result of Realized Losses and Additional Trust Fund
Expenses to equal the Class Principal Balance of the Corresponding Certificates
that will be outstanding immediately following such Distribution Date.
(c) On any Distribution Date, the amount of any Mortgage Deferred
Interest will be allocated as Certificate Deferred Interest to each outstanding
Class of Sequential Pay Certificates (other than the Class A-4FL Certificates,
Class A-4FL Component Certificates, Class A-MFL Certificates and Class A-MFL
Component Certificates) and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest in reverse order of priorities (except with respect to the
Class A-1, Class A-2, Class A-PB, Class A-3 and Class A-1A Certificates and the
Class A-4FL Regular Interest, which amounts shall be applied pro rata (based on
remaining Class Principal Balances) to such Classes), in each case up to the
respective Accrued Certificate Interest for each such Class for such
Distribution Date. On each such Distribution Date, the Class Principal Balance
of each Class of Certificates or the Class A-4FL Regular Interest or Class A-MFL
Regular Interest, as applicable, to which Certificate Deferred Interest has been
allocated shall be increased by the amount of Certificate Deferred Interest
allocated to such Class. All Certificate Deferred Interest, if any, allocated to
the Class A-4FL Regular Interest Class or A-MFL Regular Interest shall result in
a corresponding increase of the Class Principal Balance of the Class A-4FL
Certificates and Class A-4FL Component Certificates or Class A-MFL Certificates
and Class A-MFL Component Certificates, respectively, pro rata, based on
remaining Class Principal Balances. The amount of Certificate Deferred Interest
allocated to any Class of Sequential Pay Certificates (other than to the Class
A-4FL Certificates and Class A-4FL Component Certificates or Class A-MFL
Certificates and Class A-MFL Component Certificates) or the Class A-4FL Regular
Interest or Class A-MFL Regular Interest shall be allocated to, and will
increase the REMIC I Principal Balances of the Corresponding REMIC I Regular
Interests in reverse order of priority specified for deemed distributions of
principal in Section 4.01(h); provided, however, with respect to the Class A-1,
Class A-2, Class A-PB, Class A-3 and Class A-1A Certificates and the Class A-4FL
Regular Interest, allocations to the Corresponding REMIC I Regular Interests
shall be made pro rata, based on remaining Class Principal Balances.
(d) Any Appraisal Reduction Amounts shall be allocated only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, as follows: to the Class Principal Balance of the Class S, Class
Q, Class P, Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class
G, Class F, Class E, Class D, Class C, Class B and Class A-J Certificates and to
the Class A-MFL Regular Interest, in that order, up to the amount of their
respective Class Principal Balances, and then to the Class A Certificates and
Class A-4FL Regular Interest on a pro rata basis; provided, however, with
respect to any Appraisal Reduction Amount relating to a Co-Lender Loan (other
than the Non-Serviced Mortgage Loans), such Appraisal Reduction Amount will be
applied, first to the Subordinate Companion Loans from the most junior to the
most senior and then, to the related Co-Lender Loan (pro rata, with each related
Pari Passu Companion Loan in the case of any Co-Lender Loan with a Pari Passu
Companion Loan). On any Distribution Date, an Appraisal Reduction Amount that
otherwise would be allocated to a Class of Certificates or Regular Interest
shall be allocated to the next most subordinate Class to the extent that the
Class Principal Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction Amount into account) is less than the
Appraisal Reduction Amount for the Distribution Date. The Master Servicer shall
report to the Trustee on or before each Determination Date all Appraisal
Reduction Amounts and the Trustee shall report to the Master Servicer no later
than 10:00 a.m. on the related P&I Advance Date the Pass-Through Rates necessary
to calculate the allocation required by this Section 4.04(d). With respect to
any Appraisal Reduction Amount relating to the Non-Serviced Mortgage Loans, such
Appraisal Reduction Amount shall be applied to the Non-Serviced Mortgage Loans
to the extent notified by the related Non-Serviced Master Servicer or related
Non-Serviced Special Servicer.
Section 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount, the Class
A-4FL Certificate Interest Distribution Amount, the Class A-4M Trust Interest
Distribution Amount, the Class A-4FL Grantor Trust Principal Distribution
Amount, the Class A-4M Interest Distribution Amount, the Class A-4MS Interest
Distribution Amount, the Class A-4FL Component Certificate Principal
Distribution Amount, the Class A-MFL Certificate Interest Distribution Amount,
the Class A-MM Trust Interest Distribution Amount, the Class A-MFL Grantor Trust
Principal Distribution Amount, the Class A-MM Interest Distribution Amount, the
Class A-MMS Interest Distribution Amount and the Class A-MFL Component
Certificate Principal Distribution Amount for each Distribution Date and shall
allocate such amount among Certificateholders in accordance with this Agreement,
and the Paying Agent shall have no obligation to recompute, recalculate or
verify any information provided to it by the Special Servicer or Master
Servicer. The calculations by the Paying Agent of such amounts shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
Section 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations or
liabilities, and the Master Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility).
ARTICLE V
THE CERTIFICATES
Section 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Agreement, as may be required to comply
with any law or with rules or regulations pursuant thereto, or with the rules of
any securities market in which the Certificates are admitted to trading, or to
conform to general usage. The Certificates will be issuable in registered form
only; provided, however, that in accordance with Section 5.03 beneficial
ownership interests in the Regular Certificates, the Class A-4M, Class A-4MS,
Class A-MM, Class A-MMS, Class A-4FL and Class A-MFL Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Regular Certificates, the Class A-4M, Class A-4MS, Class A-MM,
Class A-MMS, Class A-4FL and Class A-MFL Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances or initial
Certificate Notional Amounts, as the case may be, as of the Closing Date of not
less than $10,000 in the case of the Registered Certificates, $1,000,000 in the
case of the Class IO Certificates, and $250,000 in the case of Non-Registered
Certificates (other than the Residual Certificates), and in each such case in
integral multiples of $1 in excess thereof. The Class Z Certificates, Class R-I
Certificates and the Class R-II Certificates shall have no minimum denomination
and shall each be represented by a single definitive certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories 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.
Section 5.02. Registration, 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 (located as of the Closing Date at the
Corporate Trust Office), shall provide for the registration of Certificates and
of transfers and exchanges of Certificates as herein provided. The Certificate
Register shall contain the aggregate holdings of Certificates represented by
each Regulation S Global Certificate and each Domestic Global Certificate. The
Trustee is hereby initially appointed (and hereby agrees to act in accordance
with the terms hereof) as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and the Master Servicer, 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. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer 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. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Initial Purchasers or their respective Affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 hereto, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit F-2
hereto, Exhibit F-3 hereto, Exhibit F-4 hereto, Exhibit F-5 hereto or Exhibit
F-6 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee 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 upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor 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.
In connection with transfer of the Non-Registered Certificates, the
Depositor shall furnish upon request of a Certificateholder or Certificate Owner
to such Holder or Certificate Owner and any prospective purchaser designated by
such Certificateholder or Certificate Owner the information required to be
delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
Notwithstanding the foregoing, for so long as any Non-Registered
Certificate is a Book-Entry Certificate, (a) each prospective transferor of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferee of such Certificate the information set forth on Exhibit F-1
upon or prior to such transfer and (b) each prospective transferee of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferor of such Certificate the information set forth on Exhibit F-2,
Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6, as applicable, upon or
prior to such transfer. In addition, if such prospective transferee is an
Institutional Accredited Investor (but not also a Qualified Institutional
Buyer), such prospective transferee shall be deemed to have acknowledged that
any beneficial interest in a Book-Entry Certificate that is transferred to it is
required to be delivered in the form of a Definitive Certificate and shall cease
to be an interest in such Book-Entry Certificate and, thereafter, shall be
subject to all transfer restrictions and other procedures applicable to
Certificates in definitive form. Notwithstanding the foregoing, the Class A-4M,
Class A-MM, Class A-4MS, Class A-MMS, Class A-4FL and Class A-MFL Certificates
shall not be transferred to an Institutional Accredited Investor.
(c) No transfer of a Certificate or any interest therein shall be
made to any "employee benefit plan" subject to Title I of ERISA, any "plan"
subject to Section 4975 of the Code or any other retirement plan or other
employee benefit plan or arrangement subject to applicable federal, state or
local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, or any entity deemed to hold plan assets of the foregoing by
reason of such a plan's investment in such entity (each, a "Plan") unless (A) in
the case of a Certificate other than a Residual Certificate or a Class Z
Certificate, the transferee is an insurance company general account which is
eligible for, and satisfies all the requirements of, exemptive relief under
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60 ("PTE 95-60") or (B) in the case of a Certificate other than an ERISA
Restricted Certificate, a Residual Certificate or a Class Z Certificate, the
transferee (1) qualifies as an accredited investor as defined in Rule 501(a)(1)
of Regulation D under the Securities Act, (2) satisfies all the requirements of
the Exemptions as in effect at the time of such transfer, (3) in the case of a
Class A-4FL or Class A-MFL Certificate, the Plan fiduciary is a qualified
professional asset manager (as defined in PTE 84-14, an in-house asset manager
(as defined in PTE 96-23)), or a Plan fiduciary with total assets under
management of at least $100 million at the time the Certificate is acquired and
(4) in the case of the Class A-MM and Class A-4M Certificates, satisfies all the
requirements of at least one of PTE 84-14, PTE 90-1, PTE 91-38, PTE 95-60 or PTE
96-23 or a similar exemption under Similar Law. Each Person who acquires a
Certificate in Definitive Certificate form shall be required to certify in
writing in the form attached as Exhibit G hereto that it meets the foregoing
conditions and that it will not transfer such Certificate in violation of the
foregoing, and each Person who acquires a Certificate in Book-Entry Certificate
form shall be deemed to have represented that the foregoing conditions are
satisfied and that it will not transfer such Certificate in violation of the
foregoing. Notwithstanding the foregoing, the Class A-4M, Class A-MM, Class
A-4MS, Class A-MMS, Class A-4FL and Class A-MFL Certificates shall not be held
in Definitive Certificate form.
(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 Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such sale. The
rights of each Person acquiring any Ownership Interest in a Residual Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Master Servicer, the Paying Agent and the
Certificate Registrar of any change or impending change in its
status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and shall not register the Transfer of any
Residual Certificate until its receipt of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar, and
upon which the Certificate Registrar may, in the absence of actual
knowledge by a Responsible Officer of either the Trustee or the
Certificate Registrar to the contrary, conclusively rely,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee; that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject
of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee; that for so long as it
retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee; that it has historically
paid its debts as they have come due, intends to pay its debts as
they come due in the future and intends to pay all taxes associated
with the Residual Certificate as they come due; and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in a Residual
Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (a) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom such
Person attempts to transfer its Ownership Interest in such Residual
Certificate and (b) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a certificate substantially in the form attached hereto as Exhibit
H-2 stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Master Servicer and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a "pass-through
interest holder."
(ii) (A) 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 Master Servicer or 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.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Certificate Registrar shall have the
right, without notice to the Holder or any prior Holder of such
Residual Certificate, to cause the transfer of such Residual
Certificate to a Permitted Transferee on such terms as the
Certificate Registrar may choose. Such purported Transferee shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such Permitted
Transferee may be the Certificate Registrar itself or any Affiliate
of the Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Paying Agent to such purported
Transferee. The terms and conditions of any sale under this clause
(ii)(B) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions any
information available to it which is 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, and the Master Servicer and the
Special Servicer shall furnish to the Certificate Registrar all
information in its possession necessary for the Certificate Registrar to
discharge such obligation. The transferor of such Ownership Interest shall
be responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for providing such
information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated; provided that there
shall have been delivered to the Certificate Registrar and the Master
Servicer the following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then-current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at
the expense of the party seeking such modification of, addition to
or elimination of such provisions (but in no event at the expense of
the Trust Fund), to the effect that doing so will not cause either
of REMIC I or REMIC II to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee
to be subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(e) No interest in the Regulation S Global Certificates may be held
by or transferred to a U.S. Person (as defined in Regulation S) except for
exchanges for a beneficial interest in a Domestic Global Certificate or a
Definitive Certificate as described below. Any beneficial interest in a
Regulation S Global Certificate that is transferred to a U.S. Person that is an
institutional "accredited investor" (which is not a QIB) is required to be
delivered in the form of a definitive certificate and will cease to be an
interest in such Regulation S Global Certificate and, thereafter, will be
subject to all transfer restrictions and other procedures applicable to
Certificates in definitive form described below. Notwithstanding the foregoing,
no transfer of a beneficial interest in a Regulation S Global Certificate to a
Definitive Certificate as described below will be made prior to the Release
Date. Notwithstanding the foregoing, the Class A-4M, Class A-MM, Class A-4MS,
Class A-MMS, Class A-4FL and Class A-MFL Certificates shall not be transferred
to any holder as a beneficial interest in a Regular S Global Certificate.
(i) Any holder of an interest in a Regulation S Global Certificate
in respect of the Certificates will have the right, upon prior written
notice to the Depositor, the Trustee, Euroclear or Clearstream, as
applicable, and DTC, in the form of the Exchange Certificate, to exchange
all or a portion of such interest for an equivalent interest in a Domestic
Global Certificate in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in a Domestic Global
Certificate as described herein. Any holder of an interest in a Domestic
Global Certificate shall have the right, upon prior written notice to the
Depositor, the Trustee, DTC and Euroclear or Clearstream, as applicable,
in the form of the Exchange Certificate to exchange all or a portion of
such interest for an equivalent interest in a Regulation S Global
Certificate in connection with a transfer of its interest therein to a
transferee that is eligible to hold an interest in a Regulation S Global
Certificate as set forth herein. The Exchange Certificate will specify the
denomination of the Certificates to be exchanged. The Exchange Certificate
will also contain a representation that the transfer is being made in a
transaction meeting the requirements of this Agreement and Rule 144A or
Regulation S, as the case may be. Following receipt of any Exchange
Certificate by the Trustee, (i) the Trustee will endorse the schedule to
any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate
by the denominations of the Certificate or Certificates for which such
exchange is to be made and (ii) the Trustee will endorse the schedule to
any Global Certificate representing the Certificate or Certificates for
which such exchange is to be made to increase the stated principal amount
of such Global Certificate by the denominations of the Certificate or
Certificates being exchanged therefor.
(ii) Investors may hold their interests in a Regulation S Global
Certificate through Euroclear or Clearstream, if they are participants in
such systems, or indirectly through organizations that are participants in
such systems. After the end of the Restricted Period, investors may also
hold such interests through organizations that have accounts with DTC
other than Euroclear and Clearstream (the "DTC Participants"). Euroclear
and Clearstream will hold interests in a Regulation S Global Certificate
on behalf of their participants through customers' securities accounts in
their respective names on the books of their respective depositaries,
which in turn will hold such interests in a Regulation S Global
Certificate in customers' securities accounts in the depositaries' names
on the books of DTC. Clearstream and Euroclear will from time to time
appoint financial institutions to act as depositary for such entities.
Investors may hold their interests in a Domestic Global Certificate
directly through DTC, if they are DTC Participants, or indirectly through
organizations which are DTC Participants.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
(l) Each Person who has or who acquires any Ownership Interest in a
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of any Intercreditor
Agreement affecting such Certificate.
Section 5.03. Book-Entry Certificates.
(a) Each Class of Regular Certificates and the Class A-4FL
Certificates and Class A-MFL Certificates (in each case, other than any portion
of which is represented by a definitive certificate if permitted hereunder)
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in Section 5.03(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 5.03(c) below,
shall not be entitled to definitive, fully registered Certificates ("Definitive
Certificates") in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. 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 Master Servicer, 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 Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(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 a Class of 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 with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners (other than
with respect to the Class A-4M, Class A-4MS, Class A-MM and Class A-MMS
Certificates and, if applicable, Class A-4FL and Class MFL Certificates)
requesting the same. Upon surrender to the Certificate Registrar of the
Book-Entry Certificates of any Class thereof by the Depository (other than with
respect to the Class A-4M, Class A-4MS, Class A-MM and Class A-MMS Certificates
and, if applicable, Class A-4FL and Class MFL Certificates), accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, at the Depositor's expense, and the
Authenticating Agent shall authenticate and deliver, the Definitive Certificates
(other than with respect to the Class A-4M, Class A-4MS, Class A-MM and Class
A-MMS Certificates and, if applicable, Class A-4FL and Class MFL Certificates)
in respect of such Class to the Certificate Owners identified in such
instructions. Upon surrender to the Certificate Registrar of the Definitive
Certificate of any Class thereof by the Depository, accompanied by registration
instructions from the Certificate Owner for registration of transfer, the
Certificate Registrar shall execute, at the Depositor's expense, and the
Authenticating Agent shall authenticate and deliver, the Book-Entry Certificates
in respect of such Class to the Depository identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
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) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including, but not limited to, any Non-Registered Certificate, any
Subordinated Certificate and any Class Z Certificate) which interests are
transferable through the book-entry facilities of the Depository.
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 Trustee and 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 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 applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person whose name each Certificate is registered as of
the date of determination as the owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
Section 5.06. Class A-4M and Class A-MM Conversions.
(a) In the event of a Put Option Termination Event, the Class A-4M
Liquidity Provider may elect to terminate the related Put Agreement on the next
succeeding Distribution Date without the requirement for the outstanding Class
A-4M Certificates to be remarketed pursuant to the terms of the Placement
Agreement. Upon notice from the Class A-4M Liquidity Provider of its election to
terminate the Put Agreement following the occurrence of a Put Option Termination
Event, the Trustee shall cause the cancellation of the Class A-4M Certificates
and shall cause the reissuance of Class A-4M Certificates at the Class A-4M
Maximum Pass-Through Rate (a "Class A-4M Conversion"), in each case, as of the
immediately succeeding Distribution Date following the termination of the Put
Agreement. Such cancellation and reissuance shall be performed through DTC and
the Trustee shall cause DTC to notify Holders of the Class A-4M Certificates of
the related CUSIP and Pass-Through Rate of such new Class A-4M Certificates.
Following a Class A-4M Conversion, the Class A-4M Certificates shall not have a
Mandatory Tender Date and shall not be entitled to any remarketing rights
pursuant to the terms of the Placement Agreement.
(b) In the event of a Put Option Termination Event, the Class A-MM
Liquidity Provider may elect to terminate the related Put Agreement on the next
succeeding Distribution Date without the requirement for the outstanding Class
A-MM Certificates to be remarketed pursuant to the terms of the Placement
Agreement. Upon notice from the Class A-MM Liquidity Provider of its election to
terminate the Put Agreement following the occurrence of a Put Option Termination
Event, the Trustee shall cause the cancellation of the Class A-MM Certificates
and shall cause the reissuance of Class A-MM Certificates at the Class A-MM
Maximum Pass-Through Rate (a "Class A-MM Conversion"), in each case, as of the
immediately succeeding Distribution Date following the termination of the Put
Agreement. Such cancellation and reissuance shall be performed through DTC and
the Trustee shall cause DTC to notify Holders of the Class A-MM Certificates of
the related CUSIP and Pass-Through Rate. Following a Class A-MM Conversion, the
Class A-MM Certificates shall not have a Mandatory Tender Date and shall not be
entitled to any remarketing rights pursuant to the terms of the Placement
Agreement.
Section 5.07. Issuance of New Certificates.
Upon a successful placement under the terms of the Placement
Agreement, the Trustee shall cause the Trust Fund to issue new Class A-4M and/or
Class A-MM Certificates, as applicable, in the principal amount and having the
form and terms described in Section 2(c)(iv)(B) of the Placement Agreement. The
issuance of such new Certificates shall be performed through DTC. The Trustee
shall notify DTC of (i) the principal amount of the Class A-4M Certificates
and/or Class A-MM Certificates, (ii) the Certificate Principal Balance of the
Class A-4M Certificates and/or Class A-MM Certificates to be issued by the
Trustee, (iii) the date on which the Certificates are to be issued and (iv) the
Pass-Through Rate applicable to such Class of Certificates.
Section 5.08. Class A-4M and Class A-MM Call Options.
(a) Each holder of a Class A-4MS Certificate shall have the option
to purchase a portion of the Class A-4M Certificates, in an outstanding
principal amount equal to 10 times the outstanding principal amount of the Class
A-4MS Certificates held by such Certificateholder at a price (the "Class A-4M
Call Option Price") equal to (i) the Certificate Principal Balance of such Class
A-4M Certificates on such Distribution Date plus (ii) the Class A-4M Interest
Distribution Amount allocable to such Class A-4M Certificate on such
Distribution Date (the "Class A-4M Call Option"). Upon written notice from the
Holder of a Class A-4MS Certificate of its exercise of the Class A-4M Call
Option, the Trustee shall deliver such notice to DTC and notify such Holder of
the Class A-4M Call Option Price no later than 5 Business Days prior to the next
succeeding Distribution Date (the "Class A-4M Option Exercise Date"). The Class
A-4M Call Option is exercisable (i) prior to June 2008, in the event the related
Put Agreement is terminated as a result of a Class A-4M Conversion Event, (ii)
on or after June 2008, at any time, subject to the terms of this Agreement, and
(iii) in the event that the Class A-4M Liquidity Provider is required to
purchase any Class A-4M Certificates on any Mandatory Tender Date in accordance
with the related Put Agreement. The Trustee shall not accept any attempt to
exercise a Class A-4M Call Option if the holders of the Class A-4MS Certificates
fail to exercise the Class A-4M Call Option within 30 days after such Mandatory
Tender Date with respect to such Certificates, such Class A-4M Call Option shall
terminate.
(b) Each holder of a Class A-MMS Certificate shall have the option
to purchase a portion of the Class A-MM Certificates, in an outstanding
principal amount equal to 10 times the outstanding principal amount of the Class
A-MMS Certificates held by such Certificateholder at a price (the "Class A-MM
Call Option Price") equal to (i) the Certificate Principal Balance of such Class
A-MM Certificates on such Distribution Date plus (ii) the Class A-MM Interest
Distribution Amount allocable to such Class A-MM Certificate on such
Distribution Date (the "Class A-MM Call Option"). Upon written notice from the
Holder of a Class A-MMS Certificate of its exercise of the Class A-MM Call
Option, the Trustee shall deliver such notice to DTC and notify such Holder of
the Class A-MM Call Option Price no later than 5 Business Days prior to the next
succeeding Distribution Date (the "Class A-MM Option Exercise Date"). The Class
A-MM Call Option is exercisable (i) prior to June 2008, in the event the related
Put Agreement is terminated as a result of a Class A-MM Conversion Event, (ii)
on or after June 2008, at any time, subject to the terms of this Agreement, and
(iii) in the event that the Class A-MM Liquidity Provider is required to
purchase any Class A-MM Certificates on any Mandatory Tender Date in accordance
with the related Put Agreement. The Trustee shall not accept any attempt to
exercise a Class A-MM Call Option if the holders of the Class A-MMS Certificates
fail to exercise the Class A-MM Call Option within 30 days after such Mandatory
Tender Date with respect to such Certificates, such Class A-MM Call Option shall
terminate.
Section 5.09. Optional Mergers relating to the Class A-4M and Class
A-MM Certificates.
(a) (i) In the event any holder of the Class A-4MS Certificates
exercises its Class A-4M Call Option pursuant to Section 5.08(a) by notice to
the Trustee, such holder may, by notice to the Class A-4M Liquidity Provider and
the Trustee, redeem each $1 principal amount of Class A-4M and Class A-4MS
Certificates (collectively, the "Converting Certificates") held by such person
for a principal amount of Class A-4FL Certificates (a "Class A-4M Certificate
Conversion") equal to the aggregate of the Certificate Principal Balances of the
Converting Certificates, and the Class Principal Balance of the Class A-4FL
Component Certificates shall be reduced by an equivalent amount (reducing the
Class A-4M Certificates and Class A-4MS Certificates in a ten-to-one ratio in
the same manner in which the related Class A-4M Call Option was exercised
pursuant to Section 5.08 hereof).
(ii) If any holder of a portion of the Class A-4M Certificates and
Class A-4MS Certificates exercises its right to convert all or a portion
of the Class A-4M Certificates and Class A-4MS Certificates to Class A-4FL
Certificates, the holder (a "Class A-4M Converting Holder") shall provide
30 days irrevocable prior written notice to the Trustee of such election.
Upon receipt of such notice, the Trustee shall notify DTC of (i) the
identity of the Class A-4M Converting Holder, (ii) the principal amount of
the Class A-4M Certificates and Class A-4MS Certificates subject to the
Class A-4M Certificate Conversion, (iii) the Certificate Principal Balance
of the Class A-4FL Certificates to be issued by the Trustee, and (iv) the
date on which the Class A-4M Certificate Conversion is to occur. Upon the
Class A-4M Certificate Conversion, the Trustee shall (i) issue new Class
A-4FL Certificates in the name of the Class A-4M Converting Holder in the
same Certificate Principal Balance as the aggregate of the Class A-4M and
Class A-4MS Certificates that were subject of the Class A-4M Certificate
Conversion, and (ii) cause DTC to show on their records the Class A-4M
Converting Holder as the holder of the Class A-4FL Certificates.
(b) (i) In the event any holder of the Class A-MMS Certificates
exercises its Class A-MM Call Option pursuant to Section 5.08(a) by notice to
the Trustee, such holder may, by notice to the Class A-MM Liquidity Provider and
the Trustee, redeem each $1 principal amount of Class A-MM and Class A-MMS
Certificates (collectively, the "Converting Certificates") held by such person
for a principal amount of Class A-MFL Certificates (a "Class A-MM Certificate
Conversion") equal to the aggregate of the Certificate Principal Balances of the
Converting Certificates, and the Class Principal Balance of the Class A-MFL
Component Certificates shall be reduced by an equivalent amount (reducing the
Class A-MM Certificates and Class A-MMS Certificates in a ten-to-one ratio in
the same manner in which the related Class A-MM Call Option was exercised
pursuant to Section 5.08 hereof).
(ii) If any holder of a portion of the Class A-MM Certificates and
Class A-MMS Certificates exercises its right to convert all or a portion
of the Class A-MM Certificates and Class A-MMS Certificates to Class A-MFL
Certificates, the holder (a "Class A-MM Converting Holder") shall provide
30 days irrevocable prior written notice to the Trustee of such election.
Upon receipt of such notice, the Trustee shall notify DTC of (i) the
identity of the Class A-MM Converting Holder, (ii) the principal amount of
the Class A-MM Certificates and Class A-MMS Certificates subject to the
Class A-MM Certificate Conversion, (iii) the Certificate Principal Balance
of the Class A-MFL Certificates to be issued by the Trustee, and (iv) the
date on which the Class A-MM Certificate Conversion is to occur. Upon the
Class A-MM Certificate Conversion, the Trustee shall (i) issue new Class
A-MFL Certificates in the name of the Class A-MM Converting Holder in the
same Certificate Principal Balance as the aggregate of the Class A-MM and
Class A-MMS Certificates that were subject of the Class A-MM Certificate
Conversion, and (ii) cause DTC to show on their records the Class A-MM
Converting Holder as the holder of the Class A-MFL Certificates.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
Section 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer 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 Master Servicer
and the Special Servicer herein.
Section 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a corporation, or national banking association, as the
case may be, under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a national banking association or foreign corporation, as the case may be, 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, and the Master Servicer shall keep in full effect its existence and
rights as a national banking association under the laws of the United States of
America.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), 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, the Master Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business (which may
be limited to the commercial loan servicing business) of the Depositor, the
Master Servicer or the Special Servicer, shall be the successor of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, no successor or surviving Person shall
succeed to the rights of the Master Servicer or the Special Servicer unless (i)
as evidenced in writing by the Rating Agencies, such succession will not result
in qualification, downgrading or withdrawal of the ratings then assigned by the
Rating Agencies to any Class of Certificates and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23.
Section 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer,
or any director, officer, employee or agent of any of them, shall be under any
liability to the Trust Fund, the Trustee or the Certificateholders or the
Companion Holders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, this provision
shall not protect the Depositor, the Master Servicer or the Special Servicer
against any liability to the Trust Fund, the Trustee, the Certificateholders or
the Companion Holders for the breach of a representation, warranty or covenant
made herein by such party, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder or negligent disregard of such obligations and duties. The
Depositor, the Master Servicer, the Special Servicer and any director, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
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 Master Servicer, the Special Servicer and any
director, member, manager, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund against any loss, liability or reasonable expense incurred in
connection with this Agreement or the Certificates (including, without
limitation, the distribution or posting of reports or other information as
contemplated by this Agreement), other than any loss, liability or expense: (i)
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof (including without limitation, those expenses set
forth in Section 3.11(b) or Section 3.11(d) and the last sentence of the
definition of Servicing Advances); (ii) incurred in connection with any breach
of a representation, warranty or covenant made herein; or (iii) incurred by
reason of willful misfeasance, bad faith or negligence in the performance of
obligations or duties hereunder. None of the Depositor, the Master Servicer or
the Special Servicer shall be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its respective duties
under this Agreement and unless it is specifically required hereunder to bear
the costs of such legal action, in its opinion does not involve it in any
ultimate expense or liability; provided, however, the Depositor, the Master
Servicer or the Special Servicer may in its discretion undertake any such action
which it may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the
Certificate Account as provided in Section 3.05. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them or by the Depositor, the Trustee, or
any Certificateholder, subject to the provisions of Section 8.05(b).
Section 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall have the right to resign at any other time; provided that (i) a
willing successor thereto has been found by the Master Servicer or Special
Servicer, as applicable, (ii) each of the Rating Agencies confirms in writing
that the successor's appointment will not result in a withdrawal, qualification
or downgrade of any rating or ratings assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation. Neither the Master Servicer nor the Special Servicer shall
be permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
Section 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or Special Servicer hereunder or exercise the
rights of the Master Servicer and the Special Servicer hereunder; provided,
however, neither the Master Servicer nor the Special Servicer shall be relieved
of any of its obligations hereunder by virtue of such performance by the
Depositor or its designee; provided, further, the Depositor may not exercise any
right pursuant to Section 7.01 to terminate the Master Servicer or the Special
Servicer as a party to this Agreement. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
Section 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09. Designation of Special Servicer by the Controlling
Class and Controlling Holders.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.04 (including, without limitation, Rating Agency confirmation) to serve as
Special Servicer hereunder and to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer; provided that such Holder or Holders shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default. Such Holder or Holders may also select a Controlling Class
Representative that may advise and direct the Special Servicer and whose
approval is required for certain actions, as described herein. Such Holder or
Holders shall so designate a Person to serve as replacement Special Servicer by
the delivery to the Trustee, the Master Servicer and the existing Special
Servicer of a written notice stating such designation. The Trustee shall,
promptly after receiving any such notice, deliver to the Rating Agencies an
executed Notice and Acknowledgment in the form attached hereto as Exhibit I-1.
If such Holders have not replaced the Special Servicer within 30 days of such
Special Servicer's resignation or the date such Special Servicer has ceased to
serve in such capacity, the Trustee shall designate a successor Special Servicer
meeting the requirements set forth in Section 6.04. Any designated Person shall
become the Special Servicer, subject to satisfaction of the other conditions set
forth below, on the date that the Trustee shall have received written
confirmation from all of the Rating Agencies that the appointment of such Person
will not result in the qualification, downgrading or withdrawal of the rating or
ratings assigned to one or more Classes of the Certificates. The appointment of
such designated Person as Special Servicer shall also be subject to receipt by
the Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit I-2, executed by the designated Person, and (2) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 6.09 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the Acknowledgment of Proposed Special Servicer the designated Person shall be
bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, the resigning Special Servicer shall continue to be entitled to receive
all amounts accrued or owing to it under this Agreement on or prior to the
effective date of such resignation (including Workout Fees as set forth in
Section 3.11(c) of this Agreement), and it shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such resignation. Such resigning
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer within two (2) Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the Certificate Account or the REO
Account or delivered to the Master Servicer or that are thereafter received with
respect to Specially Serviced Mortgage Loans and REO Properties.
Notwithstanding the foregoing, in accordance with the terms of the
DDR Southeast Pool Intercreditor Agreement, the Companion Holder related to the
DDR Southeast Pool Loan shall have the right to appoint, approve and/or remove
the Special Servicer with respect to the DDR Southeast Pool Loan, and the
Controlling Class shall not have the right to replace the Special Servicer with
respect to the DDR Southeast Pool Loan as described above.
Notwithstanding the foregoing, in accordance with the terms of the
Beacon D.C. & Seattle Pool Intercreditor Agreement, the Special Servicer may be
removed at any time, with or without cause, but only with the consent of the MS
2007-IQ14 Controlling Class Representative with respect to the Beacon D.C. &
Seattle Pool Loan.
Section 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within 30 days,
such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the Master
Servicer or the Special Servicer, as applicable, for the reasonable expenses of
the Trustee incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
Section 6.11. The Controlling Class Representative.
(a) Subject to Sections 6.11(d), 6.11(e), 6.11(f), 6.11(g), 6.11(h),
6.11(i) and 6.11(j) the Controlling Class Representative will be entitled to
advise the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event or the violation of the
Servicing Standard and except as set forth in, and in any event subject to, the
second paragraph of this Section 6.11(a), the Special Servicer will not be
permitted to take any of the following actions as to which the Controlling Class
Representative has objected in writing within ten Business Days of being
notified thereof, which notification with respect to the action described in
clause (vi) below shall be copied by the Special Servicer to the Master Servicer
(provided that if such written objection has not been received by the Special
Servicer within such ten Business Day period, then the Controlling Class
Representative's approval will be deemed to have been given):
(i) any actual or proposed foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come
into and continue in default;
(ii) any modification of a Money Term of a Mortgage Loan (other than
a modification consisting of the extension of the maturity date of a
Mortgage Loan for one year or less) or a material non-monetary term;
(iii) any actual or proposed sale of an REO Property (other than in
connection with the termination of the Trust Fund or pursuant to Section
3.18);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral or release
of material collateral for a Mortgage Loan unless required by the
underlying loan documents;
(vi) any waiver of a "due-on-sale" clause or "due-on-encumbrance"
clause;
(vii) any release of any performance or "earn-out" reserves, escrows
or letters of credit, including those listed on Exhibit J;
(viii) any acceptance of an assumption agreement releasing a
Mortgagor from liability under a Mortgage Loan (other than in connection
with a defeasance permitted under the terms of the applicable Mortgage
Loan documents);
(ix) any termination of the related property manager for Mortgage
Loans having an outstanding principal balance of greater than $5,000,000;
(x) any termination of, or modification of, any applicable franchise
agreement related to any Mortgage Loan secured by a hotel;
(xi) any determination to allow a Mortgagor not to maintain
terrorism insurance; and
(xii) any determination to decrease the time period referenced in
clause (g) of the definition of Specially Serviced Mortgage Loan.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made in this Agreement; provided that notwithstanding anything herein
to the contrary or anything in this Agreement which permits the Controlling
Class Representative or a Companion Holder the right to consent to or object to
actions taken by the Special Servicer, no such advice or direction, and no
objection contemplated by the preceding paragraph may require or cause the
Special Servicer to violate any applicable law, any provision of this Agreement
or the REMIC Provisions (and the Special Servicer shall disregard any such
direction or objection), including without limitation the Special Servicer's
obligation to act in accordance with the Servicing Standard, or expose the
Master Servicer, the Special Servicer, the Trust Fund or the Trustee or their
respective Affiliates, officers, directors, employees or agents to any claim,
suit or liability, or materially expand the scope of the Special Servicer or the
Special Servicer's responsibilities hereunder or cause the Special Servicer to
act, or fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders. For the
avoidance of doubt, the Master Servicer and/or the Special Servicer will
disregard any direction or objection of any party (including without limitation
of the Controlling Class Representative or a Companion Holder) if such direction
and or objection causes the Master Servicer or the Special Servicer to violate
the Servicing Standard, any applicable law, any provision of this Agreement or
the REMIC Provisions or expose the Master Servicer, the Special Servicer, the
Trust Fund, the Paying Agent or the Trustee or their respective Affiliates,
officers, directors employees or agents to any claim, suit or liability, or
materially expand the scope of the Master Servicer's or Special Servicer's
responsibility hereunder or cause the Master Servicer or the Special Servicer to
act, or fail to act, in a manner which in the reasonable judgment of the Master
Servicer or the Special Servicer is not in the best interest of the
Certificateholders, or the holders of the Companion Loan and consistent with the
Servicing Standard.
(b) The Controlling Class Representative, the Controlling Class and
the Holder of any Companion Loan will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, or for errors in judgment; provided, however, the Controlling Class
Representative, the Controlling Class and the Holder of any Companion Loan will
not be protected against any liability to a Controlling Class Certificateholder
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 Controlling Class, the
Controlling Class Representatives or any Holder of a Companion Loan may take
actions that favor the interests of one or more Classes of the Certificates over
other Classes of the Certificates, and that the Controlling Class, the
Controlling Class Representative and the Holder of any Companion Loan may have
special relationships and interests that conflict with those of Holders of some
Classes of the Certificates, that the Controlling Class, the Controlling Class
Representatives or any Holder of a Companion Loan may act solely in the
interests of the Holders of the Controlling Class or any Companion Holder, as
the case may be, and that the Controlling Class Representatives do not have any
duties or liability to the Holders of any Class of Certificates other than the
Controlling Class or any Companion Holder and shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Controlling Class Representatives or any Holder of any Companion
Loan or any director, officer, employee, agent or principal thereof for having
so acted.
(c) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the Non-Serviced Mortgage
Loans, in the event the related Non-Serviced Controlling Class Representative is
required to give its consent to any actions with respect thereto, the related
Non-Serviced Controlling Class Representative shall be required to confer with
the Controlling Class Representative, provided however, that in the event the
Controlling Class Representative and the related Non-Serviced Controlling Class
Representative are not able to agree upon a course of action, the decision of
the related Non-Serviced Controlling Class Representative shall control.
(d) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the Two Herald Square
Loan, the Master Servicer and the Special Servicer shall comply with Section 3
of the Two Herald Square Intercreditor Agreement.
(e) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the 17 Battery Place South
Loan, the Master Servicer and the Special Servicer shall comply with Section 3
of the 17 Battery Place South Intercreditor Agreement.
(f) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the Centerside II Loan,
the Master Servicer and the Special Servicer shall comply with Section 3 of the
Centerside II Intercreditor Agreement.
(g) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the La Jolla Centre I
Loan, the Master Servicer and the Special Servicer shall comply with Section 3
of the La Jolla Centre I Intercreditor Agreement.
(h) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the La Jolla Centre II
Loan, the Master Servicer and the Special Servicer shall comply with Section 3
of the La Jolla Centre II Intercreditor Agreement.
(i) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the Courtyard by Marriott
- - Philadelphia, PA Loan, the related Master Servicer and the related Special
Servicer shall comply with Section 7 of the Courtyard by Marriott -
Philadelphia, PA Intercreditor Agreement.
(j) Notwithstanding anything to the contrary in this Section 6.11 or
anything contained in this Agreement, with respect to the Bunge North America
Loan, the related Master Servicer and the related Special Servicer shall comply
with Section 3 of the Bunge North America Intercreditor Agreement.
(k) Notwithstanding anything in this Section 6.11, nothing herein is
intended to limit the right of the Controlling Class Representative to consult
on a non-binding basis with the Special Servicer with respect to any Mortgage
Loan.
ARTICLE VII
DEFAULT
Section 7.01. Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, which failure, in the case of deposits and remittance
to the Certificate Account, continues unremedied 1 Business Day after the
date upon which such deposit was required to have been made hereunder, or
to deposit into, or remit to the Paying Agent for deposit into the
Distribution Account, the Floating Rate Accounts, Class A-4M Trust Account
or the Class A-MM Trust Account, any amount (other than a P&I Advance)
required to be so deposited or remitted by it under this Agreement, which
failure, in the case of deposits and remittances to the Distribution
Account, the Floating Rate Accounts, continues unremedied until 10:00
a.m., New York City time on the related Distribution Date; provided,
however, to the extent the Master Servicer does not timely make such
remittances, the Master Servicer shall pay the Trustee for the account of
the Trustee interest on any amount not timely remitted at the Prime Rate
from and including the applicable required remittance date to but not
including the date such remittance is actually made; or
(ii) any failure by the Special Servicer to timely deposit into the
REO Account or to timely deposit into, or to timely remit to the Master
Servicer for deposit into, the Certificate Account, any amount required to
be so deposited or remitted under this Agreement; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which Servicing
Advance remains unmade for a period of 5 Business Days following the date
on which notice shall have been given to the Master Servicer, as the case
may be, by the Trustee as provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the Special
Servicer or any Servicing Participant duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Master Servicer or the Special Servicer, as the case may be, contained
in this Agreement which continues unremedied for a period of 30 days
(other than in the case of the Master Servicer's or Special Servicer's, as
applicable, obligations contemplated by Sections 3.13, 3.14 and 8.17(n)
hereof (with respect to any year that a report on Form 10-K is required to
be filed) in which case there shall be no cure period) after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Master Servicer or the Special Servicer, as
the case may be, by any other party hereto or the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), or by the Holders of Certificates entitled to at least 25% of the
Voting Rights; provided, however, with respect to any such failure which
is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of 30 days to effect such cure so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such failure
within the initial 30-day period and has provided the Trustee with an
Officer's Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders 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 Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or the Master
Servicer or the Special Servicer, as the case may be (with a copy to each
other party hereto), or by the Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, with respect to any
failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of 30 days so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure within the
initial 30-day period and provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is continuing
to pursue, a full cure; or
(vi) 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 Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(vii) the Master 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 it or
of or relating to all or substantially all of its property; or
(viii) the Master 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
(ix) the consolidated net worth of the Master Servicer and of its
direct or indirect parent, determined in accordance with generally
accepted accounting principles, shall decline to less than $15,000,000; or
(x) the Master Servicer or the Special Servicer receives actual
knowledge that Moody's has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (ii) placed
one or more Classes of Certificates on "watch status" in contemplation of
rating downgrade or withdrawal (and such "watch status" placement shall
not have been withdrawn by Moody's within 60 days of the date that the
Master Servicer or the Special Servicer obtained such actual knowledge)
and, in the case of either of clauses (i) or (ii), citing servicing
concerns with the Master Servicer or the Special Servicer, as applicable,
as the sole or material factor in such rating action; or
(xi) any failure on the part of the Master Servicer or the Special
Servicer or any Servicing Participant (other than, with respect to the
Master Servicer, Sub-Servicers identified on Exhibit Y hereto) engaged by
the Master Servicer or the Special Servicer, as applicable, to observe or
perform, following the expiration of any applicable grace and cure
periods, in any material respect any of its duties or obligations under
Section 8.17 within the timeframe specified; or
(xii) the Master Servicer or the Special Servicer, as the case may
be, is no longer listed on S&P's Select Servicer List as a U.S. Commercial
Mortgage Master Servicer or a U.S. Commercial Mortgage Special Servicer,
as the case may be, and such removal continues for a period of 60 days; or
(xiii) the Master Servicer shall fail to remit to the Paying Agent
for deposit into the Distribution Account, on any P&I Advance Date, the
full amount of P&I Advances required to be made on such date, which
failure continues unremedied until 10:00 a.m. New York City time on the
next Business Day succeeding such P&I Advance Date; provided, however, to
the extent the Master Servicer does not timely make such remittances, the
Master Servicer shall pay the Trustee for the account of the Trustee,
interest on any amount not timely remitted at the Prime Rate from and
including the applicable required remittance date to but not including the
date such remittance is actually made; or
(xiv) [Reserved]; or
(xv) The Trustee has received written notice from any Rating Agency
that the continuation of the Master Servicer or Special Servicer in such
capacity would result or has resulted in the downgrade, qualification, or
withdrawal of any rating then assigned by such Rating Agency to any Class
of Certificates and such downgrade, qualification, or withdrawal shall not
have been withdrawn within 60 days of the date that the Master Servicer or
the Special Servicer obtained actual knowledge of such downgrade,
qualification, or withdrawal.
(b) If any Event of Default shall occur with respect to the Master
Servicer or the Special Servicer (in either case, for purposes of this Section
7.01(b), the "Defaulting Party") and shall be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been remedied,
the Depositor and/or the Trustee may, and at the written direction of the
Holders of Certificates entitled to at least 25% of the Voting Rights, the
Trustee shall, by notice in writing to the Defaulting Party (with a copy of such
notice to each other party hereto and the Rating Agencies), terminate all of the
rights and obligations (but not the liabilities for actions and omissions
occurring prior thereto) of the Defaulting Party under this Agreement and in and
to the Trust Fund, other than its rights as a Certificateholder hereunder.
Notwithstanding the foregoing, it is acknowledged and agreed that the Depositor
shall have no obligation to exercise any of the preceding rights and/or powers.
From and after the receipt by the Defaulting Party of such written notice of
termination, all authority and power of the Defaulting Party under this
Agreement, whether with respect to the Certificates (other than as a holder of
any Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten Business
Days subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records, including those in electronic form, requested
thereby to enable the Trustee or a successor Master Servicer or Special Servicer
to assume the Master Servicer's or Special Servicer's, as the case may be,
functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, (i) the
immediate transfer to the Trustee or a successor Master or Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, a Servicing Account or a Reserve Account (if the Master
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or (ii) the transfer within two
(2) Business Days to the Trustee or a successor Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the REO Account, the Certificate
Account, a Servicing Account or a Reserve Account or delivered to the Master
Servicer (if the Special Servicer is the Defaulting Party) or that are
thereafter received by or on behalf of it with respect to any Mortgage Loan or
REO Property (provided, however, the Master 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 or
otherwise, and it shall continue to be entitled to the benefits of Section 6.03
notwithstanding any such termination). Any cost or expenses in connection with
any actions to be taken by the Master Servicer, the Special Servicer or the
Trustee pursuant to this paragraph shall be borne by the Defaulting Party and if
not paid by the Defaulting Party within 90 days after the presentation of
reasonable documentation of such costs and expenses, such expense shall be
reimbursed by the Trust Fund; provided, however, the Defaulting Party shall not
thereby be relieved of its liability for such expenses. If and to the extent
that the Defaulting Party has not reimbursed such costs and expenses, the
Trustee shall have an affirmative obligation to take all reasonable actions to
collect such expenses on behalf of and at the expense of the Trust Fund. For
purposes of this Section 7.01 and of Section 7.03(b), the Trustee shall not be
deemed to have knowledge of an event which constitutes, or which with the
passage of time or notice, or both, would constitute an Event of Default
described in clauses (i)-(viii) of subsection (a) above unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
(c) If the Master Servicer receives a notice of termination under
Section 7.01(b) solely due to an Event of Default under Section 7.01(a)(x)
and/or (xii) and if the terminated Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within the 5 Business Days after
receipt of such termination notice, the Master Servicer shall continue to serve
as Master Servicer hereunder until a successor Master Servicer is selected in
accordance with this Section 7.01(c); provided the Trustee has requested the
Master Servicer to continue to serve as the Master Servicer during such period.
Upon receipt of the "request for proposal" materials, the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least 3 Persons
qualified to act as Master Servicer hereunder in accordance with Sections 6.02
and 7.02 (any such Person so qualified, a "Qualified Bidder") or, if 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
Master Servicer to be terminated pursuant to Section 7.01(b) shall supply the
Trustee with the names of Persons from whom to solicit such bids; provided,
further, the Trustee shall not be responsible if less than 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
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the notice of termination to the Master Servicer. The materials provided
to the Trustee shall provide for soliciting bids (i) on the basis of such
successor Master 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 Master Servicer to service each of the Mortgage Loans not subject to
a Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.0 basis points per Mortgage Loan serviced (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Master Servicer to be terminated pursuant to Section 7.01(b) the amount of such
cash bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Master Servicer
and each terminated Sub-Servicer its respective Bid Allocation. In connection
with such remittance, the Trustee is entitled to be reimbursed by the Master
Servicer for the Trustee's "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing as contemplated by clause (i) of
this paragraph and by the definition of "Bid Allocation".
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within such 45-day period or no Successful Bidder was
identified within such 45-day period, the Master Servicer to be terminated
pursuant to Section 7.01(b) shall reimburse the Trustee for all reasonable
"out-of-pocket" expenses incurred by the Trustee in connection with such bid
process and the Trustee shall have no further obligations under this Section
7.01(c). The Trustee thereafter may act or may select a successor to act as
Master Servicer hereunder in accordance with Section 7.02.
(d) Notwithstanding the foregoing, if the Trustee or the Master
Servicer has received notice from Moody's or S&P that the Master Servicer is no
longer approved by Moody's or is no longer listed on S&P's Select Servicer List
as a U.S. Commercial Mortgage Master Servicer, then the Trustee or Master
Servicer shall promptly notify the other of the same.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04, be the successor in all respects to the Master Servicer or the
Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, the unmade P&I Advances that gave
rise to such Event of Default; provided that if the Master Servicer is the
resigning or terminated party, and if after the Closing Date the Trustee is
prohibited by law or regulation from obligating itself to make P&I Advances (as
evidenced by an Opinion of Counsel delivered to the Depositor and the Rating
Agencies) the Trustee shall not be obligated to make such P&I Advances;
provided, further, any failure to perform such duties or responsibilities caused
by the Master Servicer's or the Special Servicer's, as the case may be, failure
to provide information or monies required by Section 7.01 shall not be
considered a default by the Trustee hereunder. Notwithstanding anything contrary
in this Agreement, the Trustee shall in no event be held responsible or liable
with respect to any of the acts, omissions, representations and warranties of
the resigning or terminated party (other than the Trustee) or for any losses
incurred by such resigning or terminated party pursuant to Section 3.06
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to if the resigning or terminated party had continued to act hereunder
(other than fees already earned, including, without limitation, Workout Fees).
Notwithstanding the above and subject to its obligations under Section 3.22(d)
and 7.01(b), the Trustee may, if it shall be unwilling in its sole discretion to
so act as either Master Servicer or Special Servicer, as the case may be, or
shall, if it is unable to so act as either Master Servicer or Special Servicer,
as the case may be, or shall, if the Trustee is not approved as a master
servicer or a special servicer, as the case may be, by any of the Rating
Agencies or if the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee promptly appoint, subject to
the approval of each of the Rating Agencies (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then current
rating on any Class of Certificates) or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
that meets the requirements of Section 6.02 (including, without limitation,
Rating Agency confirmation); provided, however, in the case of a resigning or
terminated Special Servicer, such appointment shall be subject to the rights of
the Holders of Certificates evidencing a majority of the Voting Rights allocated
to the Controlling Class to designate a successor pursuant to Section 6.09.
Except with respect to an appointment provided below, no appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption of the successor to such party of all its
responsibilities, duties and liabilities under this Agreement. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
Notwithstanding the above, the Trustee shall, if the Master Servicer is the
resigning or terminated party and the Trustee is prohibited by law or regulation
from making P&I Advances, promptly appoint any established mortgage loan
servicing institution that has a net worth of not less than $15,000,000 and is
otherwise acceptable to each Rating Agency (as evidenced by written confirmation
therefrom to the effect that the appointment of such institution would not cause
the qualification, downgrading or withdrawal of the then current rating on any
Class of Certificates), as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder (including, without limitation, the obligation to
make P&I Advances), which appointment will become effective immediately. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree; provided,
however, no such compensation shall be in excess of that permitted the resigning
or terminated party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section 7.03. Notification to Certificateholders and Companion
Holders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register, and to the
Companion Holders.
(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) 5 days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor, all Certificateholders, the Rating Agencies
and the Companion Holders notice of such occurrence, unless such default shall
have been cured.
Section 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, an Event of
Default under clause (i), (ii), (x) or (xii) of Section 7.01(a) may be waived
only by all of the Certificateholders of the affected Classes. Upon any such
waiver of an Event of Default, such Event of Default shall cease to exist and
shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
Section 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
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 waiver 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 that are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
shall take such action as it deems appropriate to have the instrument corrected.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor or the Master Servicer or the Special
Servicer, 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 misconduct; provided, however:
(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 personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts if it was required to do so;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% 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; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to the Paying Agent,
Authenticating Agent, Certificate Registrar, REMIC Administrator and
Custodian.
For so long as reports are required to be filed with the Commission
under the Exchange Act with respect to the Trust Fund, the Trustee shall not
utilize any Subcontractor that is a Prohibited Party. The Trustee shall
indemnify the Depositor, the Sponsors and any director, officer, employee or
agent of the Depositor or the Sponsors and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to the breach by the
Trustee of its obligation set forth in the preceding sentence or the failure of
the Trustee to perform any of its obligations under Section 3.13. This indemnity
shall survive the termination of this Agreement or the earlier resignation or
removal of the Trustee.
Section 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(a) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(c) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or, except as provided in Section 10.01 or 10.02, 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 applicable Swap Contract unless it is assured, in its sole
discretion, that reasonable security and indemnity against the costs and
expenses of such action(s) will be offered by the Swap Counterparty and the
Holders of the Class A-4FL Certificates and the Class A-4FL Component
Certificates or the Class A-MFL Certificates and Class A-MFL Component
Certificates, as applicable, or any other party (other than the Trust Fund); the
Trustee shall be under no obligation to take any action to enforce the rights of
the Trust Fund under the applicable Put Agreement unless it is assured, in its
sole discretion, that reasonable security and indemnity against the costs and
expenses of such action(s) will be offered by the Class A-4M Liquidity Provider
or Class A-MM Liquidity Provider, as applicable, and the Holders of the Class
A-4FL Certificates and the Class A-4FL Component Certificates or the Class A-MFL
Certificates and Class A-MFL Component Certificates, as applicable, or any other
party (other than the Trust Fund); 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; provided, however, nothing contained herein shall,
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;
(d) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) prior to the occurrence of an Event of Default hereunder and
after the curing of all 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
25% of the Voting Rights; provided, however, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Agreement, the Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, the Trustee shall remain responsible for all acts
and omissions of such agents or attorneys within the scope of their employment
to the same extent as it is responsible for its own actions and omissions
hereunder;
(g) the Trustee shall not be responsible for any act or omission of
the Master Servicer or the Special Servicer (unless the Trustee is acting as
Master Servicer or the Special Servicer) or the Depositor; and
(h) neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate or any interest
therein, other than to require delivery of the certification(s) and/or Opinions
of Counsel described in said Article applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register and
to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
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 statements attributed to the Trustee in Article II, Section 8.15 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall be taken as the statements of the Depositor,
the Master Servicer or the Special Servicer, as the case may be, and the Trustee
does not assume any responsibility for their correctness. Except as set forth in
Section 8.15, the Trustee makes no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature 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 or any other
account by or on behalf of the Depositor, the Master Servicer or the Special
Servicer unless the Trustee is acting as Paying Agent. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer 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 or any agent of the Trustee in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
as it would have if it were not the Trustee or such agent.
Section 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account as provided in Section
3.05, prior to any distributions to be made therefrom on such date, and pay to
itself all earned but unpaid Trustee Fees, Class A-4M Additional Trustee Fees
and Class A-MM Additional Trustee Fees as compensation for all services rendered
by the Trustee, 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. No Trustee Fee shall be payable with respect to the Companion Loans.
The Trustee Fee (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), together with the Class A-4M
Additional Trustee Fee and Class A-MM Additional Trustee Fee, shall constitute
the Trustee's sole compensation for such services to be rendered by it.
(b) The Trustee (whether in its capacity as such or individually)
and any director, officer, employee, affiliate, agent or "control" person within
the meaning of the Securities Act of 1933 of the Trustee shall be entitled to be
indemnified for and held harmless by the Trust Fund against any loss, liability
or reasonable "out-of-pocket" expense (including, without limitation, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with
this Agreement, the Mortgage Loans or the Certificates (including in respect of
the offering of such Certificates) or any act of the Master Servicer or the
Special Servicer taken on behalf of the Trustee as provided for herein; provided
that such expense is an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii); provided, further,
neither the Trustee, nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (1) any
liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) 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 its negligent disregard of
such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee as applicable, made herein.
The provisions of this Section 8.05(b) shall survive any resignation or removal
of the Trustee and appointment of a successor Trustee.
Section 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by a federal or state
banking authority. If such association or corporation 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 association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a long term unsecured debt rating of at least (a) "Aa3" by Moody's and "A+"
by S&P and a short term unsecured debt rating of at least "A-1" by S&P or (b)
such other rating that shall not result in the qualification, downgrading or
withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates by any Rating Agency as confirmed in writing. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee, shall resign immediately in the manner and with the effect
specified in Section 8.07; provided that if the Trustee shall cease to be so
eligible because its combined capital and surplus is no longer at least
$100,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause any Rating Agency to qualify, downgrade or withdraw any
rating assigned thereby to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is qualified, downgraded or withdrawn
thereby. The bank, trust company, corporation or association serving as Trustee
may have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates but, except to
the extent permitted or required by Section 7.02, shall not be an "Affiliate"
(as such term is defined in Section III of PTE 2000-58) of the Master Servicer,
the Special Servicer, any Sub-Servicer, the Underwriters, the Depositor, or any
obligor with respect to Mortgage Loans constituting more than 5.0% of the
aggregate authorized principal balance of the Mortgage Loans as of the date of
the initial issuances of the Certificates or any "Affiliate" (as such term is
defined in Section III of PTE 2000-58) of any such Person.
Section 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, the Swap Counterparty and to all
Certificateholders at their respective addresses set forth in the Certificate
Register. Upon receiving such notice of resignation, the Master Servicer shall
promptly appoint a successor trustee meeting the requirements in Section 8.06
and acceptable to the Depositor and the Rating Agencies 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
Depositor, the Special Servicer, the Swap Counterparty and the
Certificateholders by the Master Servicer. If no successor trustee shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee or Paying Agent (if different from the Trustee)
shall fail (other than by reason of the failure of either the Master 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
deliver any report to be delivered by the Trustee pursuant to Section 4.02 and
such failure shall continue unremedied for a period of 5 days, or if the Trustee
or Paying Agent (if different from the Trustee) fails to make distributions
required pursuant to Section 3.05(b), 4.01 or 9.01, then the Depositor may
remove the Trustee and appoint a successor trustee if necessary, acceptable to
the Master Servicer and the Rating Agencies (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then-current
rating on any Class of Certificates) by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer and the Certificateholders 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, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the 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.
Section 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer 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 third-party Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master 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 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
Section 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which the Trustee may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder; provided such entity shall be eligible under
the provisions of Section 8.06 and the Rating Agencies have provided
confirmation pursuant to such Section, 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.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 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 Master 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 cease to exist, 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.
Section 8.11. Appointment of Custodians.
(a) The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. The
initial Custodian shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
(b) For so long as reports are required to be filed with the
Commission under the Exchange Act with respect to the Trust Fund, the Custodian
shall not utilize any Subcontractor for the performance of its duties hereunder
if such Subcontractor would be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB. The Custodian shall indemnify the
Depositor, the Sponsors and any director, officer, employee or agent of the
Depositor or the Sponsors and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain in any way related to the breach by the Custodian of its
obligation set forth in the preceding sentence or the failure of the Custodian
to perform any of its obligations under Section 3.13. This indemnity shall
survive the termination of this Agreement or the earlier resignation or removal
of the Custodian.
Section 8.12. Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, in accordance with the
obligations and responsibilities herein. Each Authenticating Agent must be
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to do a trust business, have a combined
capital and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the Authenticating Agent. Wells Fargo Bank, N.A. shall
be the initial Authenticating Agent. If Wells Fargo Bank, N.A. is removed as
Trustee, then Wells Fargo Bank, N.A. shall be terminated as Authenticating
Agent. If the Authenticating Agent (other than Wells Fargo Bank, N.A.) resigns
or is terminated, the Trustee shall appoint a successor Authenticating Agent
which may be the Trustee or an Affiliate thereof. In the absence of any other
Person appointed in accordance herewith acting as Authenticating Agent, the
Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Authenticating Agent, any provision or requirement herein requiring
notice or any information or documentation to be provided to the Authenticating
Agent shall be construed to require that such notice, information or
documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall given written
notice of such appointment to the Master Servicer, the Certificate Registrar and
the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
Section 8.13. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, any Certificateholder and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Mortgage Loans within its control that may be required to be
provided by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee designated by it. Upon request and
with the consent of the Depositor and at the cost of the requesting Party, the
Trustee shall provide copies of such documentation to the Depositor, any
Certificateholder and to the OTS, the FDIC and any other bank or insurance
regulatory authority that may exercise authority over any Certificateholder.
Section 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the Trustee
in performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein.
The Trustee shall cause either such REMIC Administrator to execute and deliver
to the Trustee an instrument in which such REMIC Administrator shall agree to
act in such capacity, with the obligations and responsibilities herein. The
appointment of a REMIC Administrator shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Trustee and must be organized and doing business under
the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Trustee hereby agrees to act in such capacity in accordance with the terms
hereof. If Wells Fargo Bank, N.A. is removed as Trustee, then Wells Fargo Bank,
N.A. shall be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee the
Certificate Registrar, the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, no successor
REMIC Administrator shall be appointed unless eligible under the provisions of
this Section 8.14. Any successor REMIC Administrator upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Section 8.15. Representations and Warranties of Trustee.
The Trustee hereby represents and warrants to the Master Servicer,
the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(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 a material breach
of, any material agreement or other material instrument to which it is a
party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to carry on its business as now being conducted and 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 the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof (including with respect to any advancing
obligations hereunder), subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, 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 the ability of the
Trustee to perform its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, 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 the ability of the Trustee to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
Section 8.16. Appointment of the Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. Any Paying Agent shall be either
a bank or a trust company or otherwise authorized under law to exercise
corporate trust powers and shall have a short-term debt rating of at least "A-1"
and a long-term debt rating of at least "A2" (or its equivalent) by Moody's or a
rating of at least "A-" by S&P or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. Any such
appointment of a third party Paying Agent and the acceptance thereof shall be
pursuant to a written agreement, which written agreement shall (i) be consistent
with this Agreement in all material respects and requires the Paying Agent to
comply with this Agreement in all material respects and requires the Paying
Agent to comply with all of the applicable conditions of this Agreement; (ii)
provide that if the Trustee shall for any reason no longer act in the capacity
of Trustee hereunder (including, without limitation, by reason of an Event of
Default), the successor trustee or its designee may (A) thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Paying Agent under such agreement or (B) terminate such
agreement without cause and without payment of any penalty or termination fee;
and (iii) not permit the Paying Agent any rights or indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of any Paying Agent
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible and liable for all acts and omissions of any
Paying Agent to the extent such Paying Agent would have been responsible
pursuant to the terms hereof. The initial Paying Agent shall be the Trustee.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Paying Agent, any provision or requirement herein requiring notice or any
information to be provided to the Paying Agent shall be construed to require
that such notice, information or documentation also be provided to the Trustee.
If the Trustee appoints a Paying Agent other than the Trustee, the Trustee shall
promptly notify the Master Servicer of such appointment and give to the Master
Servicer the Paying Agent's wiring instructions and notice address.
Section 8.17. Reports to the Securities and Exchange Commission;
Available Information.
(a) Intent of Parties. The parties hereto acknowledge and agree that
the purpose of this Section 8.17 is to facilitate and allow compliance by the
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. The Depositor, the Trustee or the Master Servicer shall not
exercise its rights to request delivery of information or other performance
under these provisions other than in reasonable good faith or for purposes other
than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley
Act or the rules and regulations of the Commission thereunder; provided,
however, in all instances the reports and certificates contemplated by Sections
3.13 and 3.14 shall be provided to the Rating Agencies as required thereunder.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, and agree to comply with requests made
by the Depositor, the Trustee or the Master Servicer in reasonable good faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. The Master Servicer, the Special Servicer, any
Sub-Servicer and the Trustee shall cooperate fully with the Depositor, the
Trustee or the Master Servicer, as applicable, to deliver to the Depositor, the
Trustee or the Master Servicer, as applicable (including any of their assignees
or designees), any and all statements, reports, certifications, records and any
other information necessary in the reasonable good faith determination of the
Depositor, the Trustee or the Master Servicer, as applicable, to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Master Servicer, the Special Servicer, any
Additional Servicer, any Sub-Servicer, any Subcontractor and the Trustee, as
applicable, or the servicing of the Mortgage Loans, reasonably believed by the
Depositor or the Master Servicer, as applicable, to be necessary in order to
effect such compliance. The Master Servicer, the Special Servicer, the Trustee
and any Sub-Servicer shall have a reasonable period of time to comply with any
request made under this Section 8.17(a) but in any event, shall, upon reasonable
advance request, provide information in sufficient time to allow the Depositor
to satisfy any related filing requirements.
(b) Filing Requirements. (i) The Master Servicer, the Special
Servicer and the Trustee shall reasonably cooperate with the Depositor in
connection with the satisfaction of the Trust Fund's reporting requirements
under the Exchange Act. Pursuant to Sections 8.17(i), 8.17(j) and 8.17(k) below,
the Trustee shall prepare for execution by the Depositor any Forms 8-K, 10-D and
10-K required by the Exchange Act and the rules and regulations of the
Commission thereunder, in order to permit the timely filing thereof, and the
Trustee shall file (via the Commission's Electronic Data Gathering and Retrieval
System) such Forms executed by the Depositor.
(ii) In the event that the Trustee is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the
delivery deadlines set forth in this Agreement, the Trustee will promptly
on the day such filing would be required to be made (and in any event
prior to 1:00 p.m. New York time on such day) notify the Depositor and, to
the extent such party failed to provide any required disclosure
information, the Master Servicer and/or the Special Servicer, of such
inability to make a timely filing with the Commission. In the case of Form
10-D and 10-K, the Depositor, Master Servicer, Special Servicer and
Trustee will cooperate to prepare and file a Form 12b-25 and a 10-D/A and
10-K/A, as applicable, pursuant to Rule 12b-25 of the Exchange Act within
the time period required under such Rule. In the case of Form 8-K, the
Trustee will, upon receipt of all required Form 8-K Disclosure Information
and upon the approval and direction of the Depositor, include such
disclosure information on the next succeeding Form 10-D to be filed for
the Trust Fund. In the event that any previously filed Form 8-K, 10-D or
10-K needs to be amended, the Trustee will notify the Depositor and any
other parties as needed and such parties agree to cooperate to prepare any
necessary 8-K/A, 10-D/A or 10-K/A; provided however, the Trustee will not
be required to notify the Depositor or any other party hereto in advance
of amending Form 10-D where such amendment is solely for the purpose of
re-stating the Distribution Date Statement. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K shall be signed by the Depositor.
The parties to this Agreement acknowledge that the timely preparation,
arrangement for execution and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, 10-D or 10-K is dependent on 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 12b-25, Form 15 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 file such Form
12b-25, Form 15 or any amendments to Forms 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(iii) With respect to each Significant Obligor, the Master Servicer
shall use efforts consistent with the Servicing Standard (taking into
account, in addition, the ongoing reporting obligations of the Depositor
(as well as any depositor of a commercial mortgage securitization trust in
which a related Pari Passu Companion Loan has been deposited, if any)
under the Exchange Act) to obtain the periodic financial statements of the
Mortgagor from the related Non-Serviced Master Servicer if such
Significant Obligor relates to a Non-Serviced Mortgage Loan or from the
related Mortgagor if such Significant Obligor relates to a Mortgage Loan
serviced by the Master Servicer, in each case, by the delivery deadlines
under the related Mortgage Loan documents (which is defined in such loan
agreement as each twelve month period commencing on January 1 and ending
on December 31)), except for the quarter ending June 30, 2007 for which
delivery will not be required to be delivered prior to September 1, 2007
and the last fiscal quarter of each year for which delivery will not be
required to be delivered prior to March 1 of the following year). The
Master Servicer shall deliver to the Trustee any net operating income for
the Significant Obligor that, with respect to any Significant Obligor
related to a Non-Serviced Mortgage Loan, is separately delivered to the
Master Servicer by the related Non-Serviced Master Servicer or, with
respect to any Significant Obligor related to a Mortgage Loan that is
serviced by the Master Servicer (if any), is received from the related
Mortgagor (the "Mortgagor Provided Net Operating Income"), in each case
indicating that such net operating income was provided by the related
Mortgagor. The Master Servicer shall also forward (and, with respect to
any Specially Serviced Mortgage Loan related to a Significant Obligor, the
Special Servicer shall use commercially reasonable efforts to cooperate
with the Master Servicer to forward) financial information of the related
Mortgagor in form and substance satisfactory to comply with Item 6 of Form
10-D to the Depositor and any depositor and master servicer of a
commercial mortgage securitization trust in which a related Pari Passu
Companion Loan has been deposited, if any, and to the Trustee by updating
the following columns of the CMSA Loan Periodic Update File: BB, BP, BT
and BU (corresponding fields 54 - "Preceding Fiscal Year NOI", 68 - "Most
Recent NOI", 72 - "Most Recent Financial As of Start Date" and 73 - "Most
Recent Financial As of End Date"), as such column references and field
numbers may change from time to time, for the Distribution Date
immediately following receipt from the related Non-Serviced Master
Servicer or related Mortgagor (the "Servicer Provided Net Operating
Income"). The Master Servicer shall retain written evidence of each
instance in which it attempts to contact the related Non-Serviced Master
Servicer or the related Non-Serviced Special Servicer, as applicable, if
such Significant Obligor relates to a Non-Serviced Mortgage Loan or the
related Mortgagor if such Significant Obligor relates to a Mortgage Loan
serviced by the Master Servicer to obtain the periodic financial
statements and is unsuccessful and, within five Business Days prior to the
date in which a Form 10-D is required to be filed by the Trust Fund (or
any other commercial mortgage securitization trust in which a related Pari
Passu Companion Loan has been deposited, if any), shall forward an
Officer's Certificate evidencing its attempts to obtain this information
to the Trustee and the Depositor (and the depositor and master servicer of
a commercial mortgage securitization trust in which a related Pari Passu
Companion Loan has been deposited, if any). This Officer's Certificate
should be addressed to the Trustee as follows: Wells Fargo Bank, N.A.,
9062 Old Annapolis Road, Columbia, Maryland 21045, Attention: SEC
Reporting Group, or e-mailed to cts.sec.notification@wellsfargo.com.
(c) The Master Servicer, the Special Servicer, any Servicing
Participant and the Trustee, as applicable, shall (i) upon written request of
the Depositor, confirm in writing within 5 Business Days of receipt of such
request that the following is true and correct, or if it is not true and correct
to provide reasonable adequate disclosure of the pertinent facts, in writing, to
the Depositor of any of the following, and (ii) as promptly as practicable
following the Master Servicer, Special Servicer or Trustee (in each case on
behalf of itself and any of its Sub-Servicers or Servicing Participants)
obtaining actual knowledge shall use commercially reasonable efforts to notify
the Depositor that any of the following is not true and correct: (A) the Master
Servicer, the Special Servicer or the Trustee, as applicable, has not been
terminated as servicer or trustee in a commercial mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger, other than as disclosed in the Prospectus Supplement; (B) no
material noncompliance with the applicable Servicing Criteria with respect to
other securitizations of commercial mortgage loans involving the Master
Servicer, the Special Servicer or the Trustee, as applicable, as servicer or
trustee has been disclosed or reported by the Master Servicer, the Special
Servicer or the Trustee, as applicable, other than as disclosed in the
Prospectus Supplement; (C) no material changes to the Master Servicer's, the
Special Servicer's or the Trustee's, as applicable, policies or procedures with
respect to the servicing function or trustee function it will perform under this
Agreement for commercial mortgage loans of a type similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the Closing
Date, other than as disclosed in the Prospectus Supplement; (D) there is no
material risk that any aspects of the Master Servicer's, the Special Servicer's
or the Trustee's, as applicable, financial condition could have a material
impact on the performance of the Mortgage Loans or the Certificates, other than
as disclosed in the Prospectus Supplement; (E) there are no legal or
governmental proceedings pending (or known to be contemplated) against the
Master Servicer, the Special Servicer, the Trustee or any Sub-Servicer, as
applicable, that would be material to Certificateholders other than as disclosed
in the Prospectus Supplement; and (F) there are no affiliations, relationships
or transactions relating to the Master Servicer, the Special Servicer, the
Trustee or any Sub-Servicer, as applicable, with respect to the issuance of the
Certificates and any party thereto identified by the Depositor of a type
described in Item 1119 of Regulation AB other than as disclosed in the
Prospectus Supplement.
(d) Pursuant to the related Non-Serviced Pooling and Servicing
Agreement, the Trustee shall cooperate with the related Non-Serviced Master
Servicer and the related Non-Serviced Special Servicer in establishing the time
periods for preparation of the Form 10-D reports for the documentation of the
requirements of Regulation AB with respect to the Non-Serviced Mortgage Loans
(until January 30 of the first year in which the Trustee files a Form 15
Suspension Notice with respect to the Trust Fund). On or before the Closing
Date, the Trustee shall contact the related Non-Serviced Special Servicer to
establish such time periods for preparation of the Form 10-D. The Depositor
shall cooperate with the Trustee and take part in any telephone conferences or
other forms of reasonable communication with the related Non-Serviced Master
Servicer and the related Non-Serviced Special Servicer, as applicable, to
establish such time periods for preparation of the Form 10-D.
(e) [Reserved].
(f) [Reserved].
(g) Succession; Subcontractors. As a condition to the succession to
the Master Servicer, Special Servicer or any Servicing Participant as servicer
or Sub-Servicer under this Agreement or any Sub-Servicing Agreement by any
Person (i) into which the Master Servicer and Special Servicer or such Servicing
Participant may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer, Special Servicer or any Servicing Participant,
the Master Servicer or Special Servicer, as applicable, shall provide to the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information necessary to comply
with the reporting requirements of Section 8.17(j) hereof.
(h) [Reserved].
(i) The Form 10-D requires the registrant to indicate (by checking
"yes" or "no") that it "(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days." The
Depositor shall notify the Trustee in writing, no later than the fifth calendar
day after the related Distribution Date with respect to the filing of a report
on Form 10-D if the answer to the questions should be "no." The Trustee shall be
entitled to rely on such representations in preparing, executing and/or filing
any such report. Within 15 days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Trustee shall prepare and file
on behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form
and substance as required by the Exchange Act. The Trustee shall file each Form
10-D with a copy of the related Distribution Date Statement attached thereto.
Any necessary disclosure in addition to the Distribution Date Statement that is
required to be included on Form 10-D ("Additional Form 10-D Disclosure") shall,
pursuant to the paragraph immediately below, be reported by the parties set
forth on Exhibit U to the Depositor and the Trustee and approved by the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure absent
such reporting, direction and approval or as set forth in the next paragraph.
For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, within 5 calendar days after the related
Distribution Date, (i) the parties listed on Exhibit U hereto shall be required
to provide to the Trustee and the Depositor, to the extent a responsible officer
has actual knowledge thereof, in EDGAR-compatible format, or in such other
format as otherwise agreed upon by the Trustee and the Depositor and such party,
the form and substance of the Additional Form 10-D Disclosure described on
Exhibit U applicable to such party, (ii) the parties listed on Exhibit U hereto
shall include with such Additional Form 10-D Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit V and (iii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Trustee has no duty under this Agreement to monitor or enforce the performance
by the parties listed on Exhibit U of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
fees assessed and any expenses incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
After preparing the Form 10-D, the Trustee shall forward
electronically a draft copy of the Form 10-D to the Depositor for review and
execution. Within two Business Days after receipt of such copy, but no later
than the 12th calendar day after the Distribution Date, the Depositor shall
notify the Trustee in writing (which may be furnished electronically) of any
changes to or approval of such Form 10-D, and a duly authorized representative
of the Depositor shall sign the Form 10-D and return an electronic or fax copy
of such signed Form 10-D (with an original executed hard copy to follow by
overnight mail) to the Trustee. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in Section 8.17(b)(ii). Promptly (but no later than 1
Business Day) after filing with the Commission, the Trustee will make available
on its internet website a final executed copy of each Form 10-D prepared and
filed by the Trustee. The signing party at the Depositor can be contacted at
Wachovia Commercial Mortgage Securities, Inc., 301 South College Street,
Charlotte, North Carolina 28288, Attention: Charles Culbreth, Managing Director,
Elizabeth Stinson, Vice President, Robert J. Koontz, Vice President, Lars
Carlsten, Esq., Senior Vice President and Assistant General Counsel. The parties
to this Agreement acknowledge that the timely preparation, arrangement for
execution and filing of Form 10-D is dependent on such parties strictly
observing all applicable deadlines in the performance of their duties under this
Section 8.17(i). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
arrange for execution and/or timely file such Form 10-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.
With respect to each Significant Obligor, Item 6 of Form 10-D
provides for the inclusion of certain updated financial information set forth in
Item 1112(b) of Regulation AB on each Form 10-D to be filed by the Trust Fund
with respect to a Distribution Date immediately following the date in which each
quarterly financial statement of the related Significant Obligor is required to
be delivered to the related lender under the related Mortgage Loan documents. In
the event that the Trustee does not receive financial information of the related
Mortgagor in form and substance satisfactory to comply with item 6 of Form 10-D
of the Significant Obligor from the Master Servicer or the Special Servicer, as
applicable, for the Distribution Date immediately following receipt from the
related Special Servicer or the related Mortgagor if such Significant Obligor
relates to a Mortgage Loan serviced by the Master Servicer, or from the
Non-Serviced Master Servicer, Non-Serviced Special Servicer or Non-Serviced
Trustee, as applicable, if such Significant Obligor relates to a Non-Serviced
Mortgage Loan, the Trustee shall notify the Depositor and the Master Servicer or
the Special Servicer, as applicable, that it has not received such information.
If the Trustee has not received financial information of the related Mortgagor
in form and substance satisfactory to comply with Item 6 of Form 10-D for any
Form 10-D in which it is required to include the information required under Item
1112(b) of Regulation AB, it shall include the following statement with respect
to Item 6 on the related Form 10-D: "The information required for this Item 6
rests with a person or entity which is not affiliated with the registrant. Oral
and written requests have been made on behalf of the registrant, to the extent
required under the related pooling and servicing agreement, to obtain the
information required for this Item 6, and the registrant has been unable to
obtain such information to include on this Form 10-D by the related filing
deadline. The information is therefore being omitted herefrom in reliance on
Rule 12b-21 of the Securities Exchange Act of 1934, as amended." Upon receipt of
the updated net operating income information, the applicable Master Servicer
shall update the following columns of the CMSA Loan Periodic Update File for the
applicable Distribution Date; BB, BP, BT and BU (corresponding fields
54--"Preceding Fiscal Year NOI", 68--"Most Recent NOI", 72--"Most Recent
Financial As of Start Date" and 73--"Most Recent Financial As of End Date"), as
such column references and field numbers may change from time to time.
(j) Form 8-K Filings. Within four (4) Business Days after the
occurrence of an event requiring disclosure on Form 8-K (each such event, a
"Reportable Event"), and if requested by the Depositor, the Trustee shall
prepare and file on behalf of the Trust Fund any Form 8-K, as required by the
Exchange Act; provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included on
Form 8-K (other than the initial Form 8-K) ("Form 8-K Disclosure Information")
shall be determined and prepared by or at the direction of the Depositor
pursuant to the paragraph immediately below, be reported by the parties set
forth on Exhibit X to the Depositor and the Trustee and approved by the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information absent
such reporting, direction and approval or as set forth in the next paragraph.
The Trustee has no duty under this Agreement to enforce the performance by the
parties listed on Exhibit X of their duties under this paragraph or proactively
solicit or procure from such parties any Form 8-K Disclosure Information.
For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, no later than Noon (Eastern Time) on the
second Business Day after the occurrence of a Reportable Event (i) the parties
listed on Exhibit X hereto shall be required to provide to the Trustee and the
Depositor, to the extent a responsible officer has actual knowledge thereof, in
EDGAR-compatible format, or in such other format as otherwise agreed upon by the
Trustee and the Depositor and such party, the form and substance of the Form 8-K
Disclosure Information described on Exhibit X applicable to such party, (ii) the
parties listed on Exhibit X hereto shall include with such Additional Form 8-K
Disclosure, an Additional Disclosure Notification in the form attached hereto as
Exhibit V, and (iii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information on Form 8-K; provided that to the extent possible, the Trustee shall
take commercially reasonable efforts to meet the filing requirements set forth
herein notwithstanding the failure of any other party to comply with its
delivery requirements in a timely fashion. 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.
After preparing the Form 8-K, the Trustee shall forward, no later
than noon (Eastern Time) on the third Business Day after the Reportable Event
(but in no event earlier than 24 hours after having received the Form 8-K
Disclosure Information pursuant to the immediately preceding paragraph),
electronically a copy of the Form 8-K to the Depositor for review. Promptly, but
no later than the close of business on the third Business Day after the
Reportable Event, the Depositor shall notify the Trustee in writing (which may
be furnished electronically) of any changes to or approval of such Form 8-K. No
later than Noon (Eastern Time) on the 4th Business Day after the Reportable
Event, a duly authorized representative of the Depositor shall sign the Form 8-K
and return an electronic or fax copy of such signed Form 8-K (with an original
executed hard copy to follow by overnight mail) to the Trustee. The Trustee
shall file the Form 8-K no later than 5:30 p.m. on the fourth Business Day;
otherwise, 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 8.17(b)(ii). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trustee will make available on its internet website a
final executed copy of each Form 8-K prepared and filed by the Trustee. The
signing party at the Depositor can be contacted at Wachovia Commercial Mortgage
Securities, Inc., 301 South College Street, Charlotte, North Carolina 28288,
Attention: Managing Director. The parties to this Agreement acknowledge that the
timely preparation, arrangement for execution and filing of Form 8-K is
dependent on such parties strictly observing all applicable deadlines in the
performance of their duties under this Section 8.17(j). 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 file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
Notwithstanding the timeframe set forth in the second previous
paragraph, the Master Servicer, the Special Servicer and the Trustee shall use
reasonable efforts to promptly notify (and the Master Servicer and the Special
Servicer shall use reasonable efforts to cause each Sub-Servicer and each
Servicing Participant with which, in each case, it has entered into a
relationship with respect to the Mortgage Loans (other than a party to this
Agreement) to promptly notify) the Depositor and the Trustee, on the first
Business Day after its occurrence, of any Reportable Event of which it has
actual knowledge.
(k) Form 10-K Filings. (i) Form 10-K requires the registrant to
indicate (by checking "yes" or "no") that it "(1) has filed all reports required
to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12
months (or for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days." The Depositor shall notify the Trustee in writing, no later than March
15th of any year in which a Form 10-K will be filed in respect of the Trust Fund
if the answer to the questions should be "no." The Trustee shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report. Within 90 days after the end of each fiscal year of the Trust Fund 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 Fund ends on
December 31st of each year), commencing in March 2008, the Trustee shall prepare
and file on behalf of the Trust Fund a Form 10-K, in form and substance as
required by the Exchange Act. Each such Form 10-K shall include the following
items, in each case to the extent they have been delivered to the Trustee within
the applicable time frames set forth in this Agreement:
(ii) an annual compliance statement for the Master Servicer, the
Special Servicer and each Additional Servicer engaged by the Master
Servicer, the Special Servicer or the Trustee, as applicable as described
under Section 3.13(b);
(iii) (A) the annual reports on assessment of compliance with
Relevant Servicing Criteria for the Master Servicer, the Special Servicer,
each Additional Servicer, each Sub-Servicer and the Trustee, and any
Servicing Participant engaged by such parties, as described under Section
3.13(a), and (B) if any such report on assessment of compliance with
Relevant Servicing Criteria described under Section 3.13(a) identifies any
material instance of noncompliance, disclosure identifying such instance
of noncompliance, or if such report on assessment of compliance with
Relevant Servicing Criteria described under Section 3.13(a) is not
included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation why such report is not included;
(iv) (A) the registered public accounting firm attestation report
for the Master Servicer, the Special Servicer, each Additional Servicer,
the Trustee, each Sub-Servicer engaged by the Master Servicer or Special
Servicer and any Servicing Participant engaged by such parties, as
described under Section 3.14, and (B) if any registered public accounting
firm attestation report described under Section 3.14 identifies any
material instance of noncompliance, disclosure identifying such instance
of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such
report is not included; and
(v) a certification in the form attached hereto as Exhibit O, with
such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Sarbanes-Oxley Certification"), which
shall, except as described below, be signed by the senior officer of the
Depositor in charge of securitization.
Any disclosure or information in addition to (ii) through (v) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Exhibit W to the Depositor and the Trustee and approved by the
Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure absent
such reporting, direction and approval or as set forth in the next paragraph.
With respect to each Significant Obligor, the Master Servicer shall
use efforts consistent with the Servicing Standard (taking into account, in
addition, the ongoing reporting obligations of the Depositor (as well as any
depositor of a commercial mortgage securitization trust in which a related Pari
Passu Companion Loan has been deposited, if any) under the Exchange Act) to
obtain the periodic financial statements of the Mortgagor from the related
Non-Serviced Master Servicer if such Significant Obligor relates to a
Non-Serviced Mortgage Loan or from the related Mortgagor if such Significant
Obligor relates to a Mortgage Loan serviced by the Master Servicer by the
delivery deadlines under the related Mortgage Loan documents (which for the
avoidance of doubt is on or before the 45th day after the end of each fiscal
quarter (based on such Borrower's fiscal year (which is defined in such loan
agreement as each twelve month period commencing on January 1 and ending on
December 31)), except for the quarter ending June 30, 2007 for which delivery
will not be required to be delivered prior to September 1, 2007 and the last
fiscal quarter of each year for which delivery will not be required to be
delivered prior to March 1 of the following year). The Master Servicer shall
forward (and, with respect to any Specially Serviced Mortgage Loan related to a
Significant Obligor, the Special Servicer shall use commercially reasonable
efforts to cooperate with the Master Servicer to forward) financial information
of the related Mortgagor in form and substance satisfactory to comply with Item
1112(b) of Form 10-K to the Depositor and any depositor and master servicer of a
commercial mortgage securitization trust in which a related Pari Passu Companion
Loan has been deposited, if any, and to the Trustee by updating the following
columns of the CMSA Loan Periodic Update File: BB, BP, BT and BU (corresponding
fields 54 - "Preceding Fiscal Year NOI", 68 - "Most Recent NOI", 72 - "Most
Recent Financial As of Start Date" and 73 - "Most Recent Financial As of End
Date"), as such column references and field numbers may change from time to
time, for the Distribution Date immediately following receipt from the related
Mortgagor. The Master Servicer shall retain written evidence of each instance in
which it attempts to contact the related Non-Serviced Master Servicer or the
related Non-Serviced Special Servicer, as applicable, if such Significant
Obligor relates to a Non-Serviced Mortgage Loan or the related Mortgagor if such
Significant Obligor relates to a Mortgage Loan serviced by the Master Servicer
to obtain the periodic financial statements and is unsuccessful and, within five
Business Days prior to the date in which a Form 10-K is required to be filed by
the Trust Fund (or any other commercial mortgage securitization trust in which a
related Pari Passu Companion Loan has been deposited, if any), shall forward an
Officer's Certificate evidencing its attempts to obtain this information to the
Trustee and the Depositor (and the depositor and master servicer of a commercial
mortgage securitization trust in which a related Pari Passu Companion Loan has
been deposited, if any). This Officer's Certificate should be addressed to the
Trustee as follows: Wells Fargo Bank, N.A., 9062 Old Annapolis Road, Columbia,
Maryland 21045, Attention: SEC Reporting Group, or e-mailed to
cts.sec.notification@wellsfargo.com.
For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, no later than March 15 (with no cure period),
commencing in March 2008, or April 15 of each year in which the Trust Fund is
not required to file a Form 10-K (i) the parties listed on Exhibit W hereto
shall be required to provide to the Trustee and the Depositor, to the extent a
responsible officer has actual knowledge thereof, in EDGAR-compatible format, or
in such other format as otherwise agreed upon by the Trustee and the Depositor
and such party, the form and substance of the Additional Form 10-K Disclosure
described on Exhibit W applicable to such party, (ii) the parties listed on
Exhibit W hereto shall include with such Additional Form 10-K Disclosure, an
Additional Disclosure Notification in the form attached hereto as Exhibit V, and
(iii) 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. The Trustee has no duty under this Agreement to enforce the performance by
the parties listed on Exhibit W of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-K
Disclosure information. The Depositor will be responsible for any reasonable
fees assessed and any expenses incurred by the Trustee in connection with
including any Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
After preparing the Form 10-K, the Trustee shall forward
electronically a copy of the Form 10-K to the Depositor for review no later than
March 23rd of each year in which the Trust Fund is required to file a Form 10-K.
Within 3 Business Days after receipt of such copy, but no later than March 25th,
the Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. No later than
end of business Eastern Time on the fourth Business Day prior to the 10-K Filing
Deadline, a senior officer of the Depositor in charge of securitization shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs to be amended, the Trustee will follow the procedures set forth in
Section 8.17(b)(ii). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trustee will make available on its internet website a
final executed copy of each Form 10-K prepared and filed by the Trustee. The
signing party at the Depositor can be contacted at Wachovia Commercial Mortgage
Securities, Inc., 301 South College Street, Charlotte, North Carolina 28288,
Attention: Charles Culbreth, Managing Director, Elizabeth Stinson, Vice
President, H. Royer Culp, Jr., Vice President, Lars Carlsten, Esq., Senior Vice
President and Assistant General Counsel. The parties to this Agreement
acknowledge that the timely preparation, arrangement for execution and filing of
Form 10-K is dependent on such parties (and any Additional Servicer or Servicing
Participant) observing all applicable deadlines in the performance of their
duties under this Section 8.17(k), Section 3.13 and Section 3.14. The Trustee
shall have no liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution and/or
timely file such Form 10-K, where such failure results from the Trustee's
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
With respect to each Significant Obligor, Item 1112(b) of Form 10-K
provides for the inclusion of certain updated financial information set forth in
Item 1112(b) of Regulation AB on each Form 10-K to be filed by the Trust Fund.
In the event that the Trustee does not receive financial information of the
related Mortgagor in form and substance satisfactory to comply with Item 1112(b)
of Form 10-K for the Significant Obligor from the Master Servicer or the Special
Servicer, as applicable, the Trustee shall notify the Depositor and the Master
Servicer or the Special Servicer, as applicable, that it has not received such
information. If the Trustee has not received financial information of the
related Mortgagor in form and substance satisfactory to comply with Item 1112(b)
of Form 10-K for any Form 10-K in which it is required to include the
information required under Item 1112(b) of Regulation AB, it shall include the
following statement with respect to Item 1112(b) on the related Form 10-K: "The
information required for this Item 6 rests with a person or entity which is not
affiliated with the registrant. Oral and written requests have been made on
behalf of the registrant, to the extent required under the related pooling and
servicing agreement, to obtain the information required for this Item 1112(b),
and the registrant has been unable to obtain such information to include on this
Form 10-K by the related filing deadline. The information is therefore being
omitted herefrom in reliance on Rule 12b-21 of the Securities Exchange Act of
1934, as amended." Upon receipt of the updated net operating income information,
the applicable Master Servicer shall update the following columns of the CMSA
Loan Periodic Update File: BB, BP, BT and BU (corresponding fields 54 -
"Preceding Fiscal Year NOI", 68 - "Most Recent NOI", 72 - "Most Recent Financial
As of Start Date" and 73 - "Most Recent Financial As of End Date"), as such
column references and field numbers may change from time to time.
In the event the Master Servicer, the Special Servicer or the Trustee is
terminated or resigns pursuant to the terms of this Agreement, such party shall
provide, and each such party shall cause any Servicing Participant engaged by it
to provide, and the Master Servicer shall use its reasonable efforts to cause
any Additional Servicer to provide, a Back-Up Certification to the Certifying
Person pursuant to this Section 8.17(k) with respect to the period of time that
the Master Servicer, the Special Servicer or the Trustee was subject to this
Agreement.
Each of the parties acknowledges and agrees that one of the purposes
of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner as to
accomplish that purpose, (b) the parties' obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with requests made by the Depositor for delivery of additional or
different information as the Trustee or the Depositor may determine in good
faith is necessary to comply with the provisions of Regulation AB, and (d) no
amendment of this Agreement shall be required to effect any such changes in the
parties' obligations as are necessary to accommodate evolving interpretations of
the provisions of Regulation AB.
(l) Indemnification. (i) The Trustee shall indemnify and hold
harmless the Depositor, the Master Servicer, the Special Servicer and any
Servicing Participant and each of their respective officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach of the Trustee's obligations
under Sections 3.13, 3.14 or 8.17, and (ii) the Master Servicer, Special
Servicer and any Servicing Participant shall each severally and not jointly
indemnify and hold harmless the Depositor, the Trustee and, in the case of each
of the Master Servicer, the Special Servicer and any Servicing Participant, each
of the other such parties, and all their respective officers, directors and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon a breach (following the expiration of
any applicable notice, grace and cure periods) of the Master Servicer's, Special
Servicer's or Servicing Participant's obligations, as the case may be, under
Sections 3.13, 3.14 or 8.17. If the indemnification provided for herein is
unavailable or insufficient to hold harmless any party receiving the benefit of
such indemnification (an "Indemnified Party"), then (i) the Trustee agrees that
it shall contribute to the amount paid or payable to the Indemnified Party as a
result of the losses, claims, damages or liabilities of such party in such
proportion as is appropriate to reflect the relative fault of the Indemnified
Party on the one hand and the Trustee on the other in connection with a breach
(following the expiration of any applicable grace periods) of the Trustee's
obligations under Sections 3.13, 3.14 or 8.17, (ii) the Master Servicer agrees
that it shall contribute to the amount paid or payable to the Indemnified Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of the
Indemnified Party on the one hand and the Master Servicer on the other in
connection with a breach (following the expiration of any applicable grace
periods) of the Master Servicer's obligations under Sections 3.13, 3.14 or 8.17,
(iii) the Special Servicer agrees that it shall contribute to the amount paid or
payable by the Indemnified Party as a result of the losses, claims, damages or
liabilities of the Indemnified Party in such proportion as is appropriate to
reflect the relative fault of the Indemnified Party on the one hand and the
Special Servicer on the other in connection with a breach (following the
expiration of any applicable grace periods) of the Special Servicer's
obligations under Sections 3.13, 3.14 or 8.17, and (iv) the Master Servicer, the
Special Servicer or the Trustee, as applicable, shall use its best efforts to
cause any Servicing Participant engaged by it to contribute to the amount paid
or payable by the Indemnified Party as a result of the losses, claims, damages
or liabilities of the Indemnified Party in such proportion as is appropriate to
reflect the relative fault of the Indemnified Party on the one hand and such
Servicing Participant on the other in connection with a breach (following the
expiration of any applicable grace periods) of such Servicing Participant's
obligations under Sections 3.13, 3.14 or 8.17. Notwithstanding the foregoing,
none of the Trustee, the Master Servicer, the Special Servicer or any Servicing
Participant shall be deemed to not be in compliance under this Agreement for
purposes of this Section 8.17(l), for failing to deliver any item required under
Section 8.17 by the time required hereunder with respect to any reporting period
for which the Trust Fund is not required to file Exchange Act reports (which
reporting periods will include any occurring after the Trustee files the Form 15
Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust Fund under the Exchange Act).
(m) Form 15 Filing. On or prior to January 30 of the first year in
which the Trustee is able to do so under applicable law, the Trustee shall
prepare and file a Form 15 Suspension Notification relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange Act.
Upon receiving instruction from the Depositor that a Form 15 Suspension
Notification is not to be filed, the Trustee shall, within one (1) Business Day
of receipt of such instruction, notify the Master Servicer thereof. In the event
there is a failure by the Trustee to file a Form 15 as required hereunder, the
Trustee shall notify the Master Servicer of such failure not later than one (1)
Business Day following the applicable filing deadline. If at the beginning of
any fiscal year for the Trust Fund after the filing of a Form 15 Suspension
Notification, the number of holders of record of the Certificates exceeds the
number set forth in Section 15(d) of the Exchange Act or the regulations
promulgated pursuant thereto which would cause the Trust Fund to again become
subject to the reporting requirements of the Exchange Act, the Trustee shall
recommence preparing and filing reports on Forms 10-K, 10-D and 8-K as required
pursuant to this Section 8.17 and each of the Master Servicer, the Special
Servicer and the Trustee and any other Person specified herein shall again be
subject to the delivery and notice requirements set forth herein regarding the
Depositor's compliance with Exchange Act reporting requirements; provided that
if the Trustee re-commences the preparing and filing of Exchange Act reports, it
may, as soon as permitted by the Exchange Act, file another Form 15 Suspension
Notification.
(n) Sarbanes-Oxley Certification. Each Form 10-K shall include a
Sarbanes-Oxley Certification in the form attached as Exhibit O required to be
included therewith pursuant to the Sarbanes-Oxley Act. The Trustee shall provide
to the Person who signs the Sarbanes-Oxley Certification (the "Certifying
Person") a certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor and its officers, directors and Affiliates (provided,
however, the Trustee shall not undertake an analysis of the accountant's report
attached as an exhibit to the Form 10-K). The Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall cause
each Servicing Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans to, provide to the Certifying
Person a certification in the form attached hereto as Exhibit Q-1 and Exhibit
Q-2, as applicable, on which the Certifying Person, the entity for which the
Certifying Person acts as an officer (if the Certifying Person is an
individual), and such entity's officers, directors and Affiliates (collectively
with the Certifying Person, "Certification Parties") can reasonably rely. The
senior officer in charge of the Depositor shall serve as the Certifying Person
on behalf of the Trust Fund. In addition, each Reporting Party shall execute a
reasonable reliance certificate to enable the Certification Parties to rely upon
each (i) annual compliance statement provided pursuant to Section 3.13(a), (ii)
annual report on assessment of compliance with servicing criteria provided
pursuant to Section 3.13(b) and (iii) accountant's report provided pursuant to
Section 3.14, and shall include a certification that each such annual compliance
statement or report discloses any material instances of non-compliance described
to the registered public accountants of such Reporting Party to enable such
accountants to render the certificates provided for in Section 3.14. In the
event any Reporting Party is terminated or resigns pursuant to the terms of this
Agreement, or any applicable Sub-Servicing Agreement or primary servicing
agreement, as the case may be, such Reporting Party shall provide a
certification to the Certifying Person pursuant to this Section 8.17(n) with
respect to the period of time it was subject to this Agreement or the applicable
Sub-Servicing Agreement or primary servicing agreement, as the case may be.
With respect to any notice required to be delivered by the Trustee
to the Depositor pursuant to this Section 8.17, the Trustee may deliver such
notice, notwithstanding any contrary provision in Section 11.05, via facsimile
to (704) 715-0066, via email to charles.culbreth@wachovia.com and
robert.koontz@wachovia.com or via telephone by calling (704) 383-7721. With
respect to any notice required to be delivered by the Trustee to the Special
Servicer pursuant to this Section 8.17, the Trustee may deliver such notice,
notwithstanding any contrary provision in Section 11.05, via facsimile to
CWCapital Asset Management LLC at (202) 466-1834, via email to
diannarone@cwcapital.com and kolin@cwcapital.com or via telephone by calling
(202) 331-2434.
(o) Amendments. Sections 3.13, 3.14 and 8.17 may be amended by the
written consent of the parties hereto pursuant to Section 11.01 for purposes of
complying with Regulation AB and/or to conform to standards developed within the
commercial mortgage-backed securities market and the Sarbanes-Oxley Act or for
purposes of designating the Certifying Person without any Opinions of Counsel,
Officer's Certificates, Rating Agency confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement; provided that the reports and certificates required to be prepared
pursuant to Sections 3.13 and 3.14 shall not be eliminated.
Section 8.18. Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel to the Depositor and the Rating Agencies to the effect that the
Trustee's first priority interest in the Mortgage Notes has been duly and fully
perfected under the applicable laws and regulations of such other jurisdiction.
ARTICLE IX
TERMINATION
Section 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee on behalf of the Trust Fund to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) 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 (A) the purchase by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder of all Mortgage Loans, any REO Loans related to the
Non-Serviced Mortgage Loans, if any, and each REO Property remaining in REMIC I
at a price equal to (1) the aggregate Purchase Price of all the Mortgage Loans
included in REMIC I, plus (2) the appraised value of the Trust Fund's interest
in each REO Property (other than the Trust Fund's beneficial interest in any REO
Property related to the Non-Serviced Mortgage Loans), if any, included in REMIC
I, such appraisal to be conducted by an Independent Appraiser selected by the
Master Servicer and approved by the Trustee, plus (3) with respect to any REO
Property related to the Non-Serviced Mortgage Loans, the appraised value of such
REO Property (based on an appraisal conducted in accordance with the related
Non-Serviced Pooling and Servicing Agreement of the Mortgaged Property owned by
the related Non-Serviced Trustee on behalf of the owners thereof), based on the
outstanding principal balances of the notes constituting the Non-Serviced
Mortgage Loan, minus (4) if the purchaser is the Master Servicer, the aggregate
amount of unreimbursed Advances made by the Master Servicer, together with any
interest accrued and payable to the Master Servicer in respect of unreimbursed
Advances in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Master
Servicing Fees remaining outstanding (which items shall be deemed to have been
paid or reimbursed to the Master Servicer in connection with such purchase), and
(B) the final payment or other liquidation (or any advance with respect thereto)
of the last Mortgage Loan or REO Property remaining in REMIC I, and (ii) to the
Trustee, the Master Servicer, the Special Servicer and the officers, directors,
employees and agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, in no event shall the
Trust Fund created hereby continue beyond the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James, living on the date
hereof.
Subject in each case to the terms of the related Intercreditor
Agreement, the obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, and the
Companion Paying Agent shall terminate with respect to any Companion Loan to the
extent (i) its related Co-Lender Loan has been paid in full or is no longer part
of the Trust Fund and (ii) no amounts payable by the related Companion Holder to
or for the benefit of the Trust Fund or any party hereto in accordance with the
related Intercreditor Agreement remain due and owing.
The Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder may at its option elect to purchase all of the
Mortgage Loans and the Trust Fund's interest in each REO Property remaining in
REMIC I as contemplated by clause (i) of the preceding paragraph by giving
written notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, (i) the aggregate Stated
Principal Balance of the Mortgage Pool at the time of such election is less than
1.0% of the aggregate Cut-Off Date Balances of the Mortgage Loans, and (ii) the
Master Servicer shall not have the right to effect such a purchase if, within 30
days following the Master Servicer's delivery of a notice of election pursuant
to this paragraph, the Special Servicer or the Majority Subordinate
Certificateholder shall give notice of its election to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I and shall thereafter
effect such purchase in accordance with the terms hereof. The Master Servicer or
the Special Servicer shall not have the right to effect such a purchase if,
within 30 days following the Master Servicer's or the Special Servicer's
delivery of a notice of election pursuant to this paragraph, the Majority
Subordinate Certificateholder shall give notice of its election to purchase all
of the Mortgage Loans and the Trust Fund's interest in each REO Property
remaining in REMIC I and shall thereafter effect such purchase in accordance
with the terms hereof. If the Trust Fund is to be terminated in connection with
the Master Servicer's, the Special Servicer's or the Majority Subordinate
Certificateholder's purchase of all of the Mortgage Loans and the Trust Fund's
interest in each REO Property remaining in REMIC I, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder, as applicable,
shall deliver to the Paying Agent for deposit in the Distribution 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. In addition, the
Master Servicer shall transfer to the 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 deposit has been made,
the Trustee shall release or cause to be released to the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder, as applicable, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer, the Special Servicer or the Majority Subordinate Certificateholder, as
applicable, as shall be necessary to effectuate the transfer of the Mortgage
Loans and REO Properties to the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder (or their respective designees), and, in
the case of a Loan Pair, to the related Companion Holder, as applicable. Any
transfer of Mortgage Loans to the Depositor pursuant to this paragraph shall be
on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by
letter to the Certificateholders and the Swap Counterparty mailed (a) if such
notice is given in connection with the Master Servicer's, the Special Servicer's
or the Majority Subordinate Certificateholder's purchase of the Mortgage Loans
and the Trust Fund's interest in each REO Property (or beneficial interest in an
REO Property related to a Non-Serviced Mortgage Loan) remaining in REMIC I, 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 (b)
otherwise during the month of such final distribution on or before the
Determination Date in such month, in each case specifying (i) the Distribution
Date upon which the Trust Fund will terminate and final payment of the
Certificates will be made, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent 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 Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account (or, in the case of the Class A-4FL
Certificates and Class A-4FL Component Certificates or Class A-MFL Certificates
and Class A-MFL Component Certificates, amounts then on deposit in the related
Floating Rate Account after payment of the related Net Swap Payment to the Swap
Counterparty as specified in Section 3.30(c)) as of the final Distribution Date,
exclusive of any portion thereof that would be payable to any Person in
accordance with clauses (ii) through (vii) of Section 3.05(b), including any
portion thereof that represents Prepayment Premiums and Yield Maintenance
Charges, shall be (i) deemed distributed in respect of the REMIC I Regular
Interests and distributed to the Class R-I Certificates in accordance with
Section 4.01(b), Section 4.01(h), Section 4.01(i) and Section 4.01(o) and (ii)
distributed to the REMIC II Certificates and the Class A-4FL Certificates and
Class A-4FL Component Certificates or Class A-MFL Certificates and Class A-MFL
Component Certificates in the order of priority set forth in Section 4.01(a),
Section 4.01(b), Section 4.01(c), Section 4.01(d), Section 4.01(i), Section
4.01(m) and Section 4.01(o) in each case, to the extent of remaining available
funds.
On or after the Final Distribution Date, upon presentation and
surrender of the Class Z Certificates, the Paying Agent shall distribute to the
Class Z Certificateholders any amount then on deposit in the Additional Interest
Account that was paid on a Mortgage Loan.
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 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
After the Registered Certificates, the Class A-4FL Certificates, the
Class A-4FL Component Certificates, the Class A-MFL Certificates, the Class
A-MFL Component Certificates and the Class A-1A Certificates have been paid in
full and the remaining outstanding Certificates (other than the Class Z, Class
R-I and Class R-II Certificates) are held by a single Certificateholder, such
Certificateholder shall have the right to exchange all of the Certificates held
thereby for all of the Mortgage Loans and the Trust Fund's interest in each REO
Property remaining in the Trust Fund by giving written notice to all parties
hereto no later than 30 days prior to the anticipated date of exchange.
In the event that such Certificateholder shall elect to exchange all
of the Certificates held thereby for all of the Mortgage Loans held by REMIC I
and the Trust Fund's interest in each REO Property remaining in REMIC I in
accordance with the preceding sentence, such Certificateholder, not later than
the 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 then due and owing to the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar and/or the
REMIC Administrator hereunder. Upon confirmation that such final deposits have
been made and following the surrender of all the Certificates held by such
Certificateholder on the final Distribution Date, the Custodian, on behalf of
the Trustee, shall release or cause to be released to such Certificateholder the
Mortgage Files for the remaining Mortgage Loans, and the Trustee shall execute
all assignments, endorsements and other instruments furnished to it by such
Certificateholder as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties remaining in the Trust Fund. Thereafter, the Trust Fund
and the respective obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the REMIC
Administrator (other than annual tax returns and maintenance of books and
records and the preparation and filing of final tax returns) and the Paying
Agent shall terminate. Such transfers shall be subject to any rights of any
Sub-Servicers to primary service (or to perform select servicing functions with
respect to) the Mortgage Loans. For federal income tax purposes, the
Certificateholders shall be deemed to have purchased the assets of REMIC I for
an amount equal to the unpaid principal balance, plus accrued unpaid interest,
of such Mortgage Loan(s) (other than the defaulted Mortgage Loan(s) or the Trust
Fund's interest in such REO Property in REMIC I, and the fair market value of
any defaulted Mortgage Loans in REMIC I or the Trust Fund's interest in an REO
Property in REMIC I, without duplication of amounts deposited pursuant to the
fourth preceding sentence of this paragraph, and such amounts shall be deemed to
have been paid or distributed in accordance with Section 4.01(a), Section
4.01(b), Section 4.01(h), Section 4.01(i) and Section 4.01(m).
In the case of any Loan Pair, references in this Section 9.01 and
Section 9.02 to "REO Property" shall include only the Trust Fund's proportionate
interest in such REO Property and not the interest of the Companion Holder(s)
therein.
Section 9.02. Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholders purchase all of the Mortgage Loans and the Trust
Fund's interest in each REO Property (or beneficial interest in an REO Property
related to the Non-Serviced Mortgage Loans) remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, either of REMIC I or REMIC II)
shall be terminated in accordance with the following additional requirements,
unless the Person effecting the purchase obtains at its own expense and delivers
to the Trustee and, in the case of the Depositor, to the Trustee and the Master
Servicer, an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of either of REMIC I or REMIC II as defined in Section
860F of the Code or cause either of REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
REMIC I and REMIC II pursuant to Treasury Regulations Section 1.860F-1;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of REMIC I to the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholders, as applicable,
for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and REMIC I and REMIC II shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
authorize the Trustee to specify the 90-day liquidation period for REMIC I and
REMIC II, which authorization shall be binding upon all successor
Certificateholders.
In the event the Trust Fund is to be terminated while the Swap
Contract is still in effect, the Paying Agent shall promptly notify the
applicable Swap Counterparty in writing of the date on which the Trust Fund is
to be terminated and the notional amount of the applicable Swap Contract will be
reduced to zero on such date. Based on the date of termination, the Paying Agent
shall calculate the Net Swap Payments, if any, as specified in Section 3.30, and
prior to any final distribution to the Holders of the Class A-4FL Certificates
and Class A-4FL Component Certificates or Class A-MFL Certificates and Class
A-MFL Component Certificates pursuant to Section 9.01, shall pay such Net Swap
Payment, if any, to the Swap Counterparty. In the event that any fees (including
termination fees) will be payable to the Swap Counterparty in connection with
such termination, such fees will be payable to the Swap Counterparty solely from
amounts remaining in the applicable Floating Rate Account after all
distributions to the Class A-4FL Certificates and Class A-4FL Component
Certificates or Class A-MFL Certificates and Class A-MFL Component Certificates
are made pursuant to Section 9.01.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under applicable state
law. Each such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending December 31, 2007, in the case
of each of REMIC I and REMIC II.
(b) The REMIC I Regular Interests are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I.
The Regular Certificates and the Class A-4FL Regular Interest and Class A-MFL
Regular Interest are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code) in REMIC II. The Class R-I
Certificates are hereby designated as the single class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code) in REMIC I, and the Class
R-II Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC II.
None of the Master Servicer, the Special Servicer or the Trustee shall (to the
extent within its control) permit the creation of any other "interests" in
either of REMIC I or REMIC II (within the meaning of Treasury Regulations
Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The "latest possible maturity date" of the REMIC I Regular Interests and
the Regular Certificates for purposes of the REMIC Provisions shall be the Rated
Final Distribution Date.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and shall represent the related REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority; provided that the REMIC Administrator is
hereby irrevocably appointed to act and shall act as agent and attorney-in-fact
for the Tax Matters Person for REMIC I and REMIC II in the performance of its
duties as such.
(e) Except as otherwise provided in Section 3.17(a) and subsections
(h) and (i) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to either of REMIC I and REMIC II (but not including any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to the Trust Fund that involve the Internal Revenue Service or
state tax authorities, which extraordinary expenses shall be payable or
reimbursable to the Trustee from the Trust Fund unless otherwise provided in
Section 10.01(g) or 10.01(h)).
(f) Within 30 days after the Closing Date, the REMIC Administrator
shall obtain taxpayer identification numbers for REMIC I and REMIC II by
preparing and filing Internal Revenue Service Forms SS-4 and shall prepare and
file (if not previously prepared and filed) with the Internal Revenue Service
Form 8811, "Information Return for Real Estate Mortgage Investment Conduits
(REMIC) and Issuers of Collateralized Debt Obligations" for the Trust Fund. In
addition, the REMIC Administrator shall prepare, cause the Trustee to sign and
file all of the other Tax Returns in respect of each of REMIC I and REMIC II.
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to REMIC I and REMIC II as is in its
possession and reasonably requested by the REMIC Administrator to enable it to
perform its obligations under this Article. Without limiting the generality of
the foregoing, the Depositor, within ten days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, as to the valuations and issue prices of the
Certificates, and the REMIC Administrator's duty to perform its reporting and
other tax compliance obligations under this Article X shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the REMIC Administrator to perform such
obligations.
(g) The REMIC Administrator shall perform on behalf of each of REMIC
I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
(h) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I and REMIC II as a REMIC under the
REMIC Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer, or the Trustee shall
knowingly take (or cause either of REMIC I or REMIC II to take) any action or
fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of either of REMIC I or REMIC II as a REMIC, or (ii) except as provided
in Section 3.17(a), result in the imposition of a tax upon either of REMIC I or
REMIC II (including, but not limited to, the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code or the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code (any such endangerment or imposition
or, except as provided in Section 3.17(a), imposition of a tax, an "Adverse
REMIC Event")), unless the REMIC Administrator has obtained or received an
Opinion of Counsel (at the expense of the party requesting such action or at the
expense of the Trust Fund if the REMIC Administrator seeks to take such action
or to refrain from acting for the benefit of the Certificateholders) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
The REMIC Administrator shall not take any action or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer or the
Special Servicer has advised it in writing that either the Master Servicer or
the Special Servicer has received or obtained an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to either of REMIC I or REMIC
II, or causing either of REMIC I or REMIC II to take any action that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the REMIC Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse REMIC
Event to occur. Neither the Master Servicer nor the Special Servicer shall take
any such action or cause either of REMIC I or REMIC II to take any such action
as to which the REMIC Administrator has advised it in writing that an Adverse
REMIC Event could occur, and neither the Master Servicer nor the Special
Servicer shall have any liability hereunder for any action taken by it in
accordance with the written instructions of the REMIC Administrator. The REMIC
Administrator 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 cost or expense of the Trust
Fund, the Trustee or the REMIC Administrator. At all times as may be required by
the Code, the REMIC Administrator (to the extent it is within its control) shall
take all necessary actions within the scope of its responsibilities as more
specifically set forth in this Agreement such that it does not cause
substantially all of the assets of each of REMIC I and REMIC II to fail to
consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code
and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(i) If any tax is imposed on either of REMIC I or REMIC II,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to either of REMIC I or REMIC II after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Article X; provided
that no liability shall be imposed upon the REMIC Administrator under this
clause if another party has responsibility for payment of such tax under clauses
(iii) or (v) of this Section; (ii) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; (iii) the Master Servicer, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X; (iv) the Trustee if such tax
arises out of or results from a breach by the Trustee of any of its respective
obligations under Article IV, Article VIII or this Article X; (v) the Mortgage
Loan Seller, if such tax was imposed due to the fact that any of the Mortgage
Loans did not, at the time of their transfer to REMIC I, as applicable,
constitute a "qualified mortgage" as defined in Section 860G(a)(3) of the Code;
or (vi) the Trust Fund, excluding the portion thereof constituting the Grantor
Trusts, in all other instances. Any tax permitted to be incurred by the Special
Servicer pursuant to Section 3.17(a) shall be charged to and paid by the Trust
Fund. Any such amounts payable by the Trust Fund shall be paid by the Paying
Agent upon the written direction of the REMIC Administrator out of amounts on
deposit in the Distribution Account in reduction of the Available Distribution
Amount pursuant to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to REMIC I and REMIC II on a calendar
year and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Master
Servicer or the Special Servicer shall accept any contributions of assets to
either of REMIC I or REMIC II unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(l) None of the Trustee, the Master Servicer or the Special Servicer
shall consent to or, to the extent it is within the control of such Person,
permit: (i) the sale or disposition of any of the Mortgage Loans (except in
connection with (A) the default or foreclosure of a Mortgage Loan, including,
but not limited to, the sale or other disposition of a Mortgaged Property
acquired by deed in lieu of foreclosure, (B) the bankruptcy of either of REMIC I
or REMIC II, (C) the termination of either of REMIC I and REMIC II pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Servicing Accounts, the Interest Reserve
Accounts, the Certificate Account, the Distribution Account, the Floating Rate
Accounts, the Companion Distribution Account, the Gain-on-Sale Reserve Account
or the REO Account for gain; or (iii) the acquisition of any assets on behalf of
either of REMIC I or REMIC II (other than (1) a Mortgaged Property acquired
through foreclosure, deed in lieu of foreclosure or otherwise in respect of a
Defaulted Mortgage Loan, (2) a Qualified Substitute Mortgage Loan pursuant to
Article II hereof and (3) Permitted Investments acquired in connection with the
investment of funds in the Servicing Accounts, the Interest Reserve Accounts,
the Interest Shortfall Account, the Certificate Account, the Distribution
Account, the Floating Rate Accounts, the Companion Distribution Account, the
Gain-on-Sale Reserve Account or the REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) either of REMIC I or REMIC II to fail to qualify
as a REMIC at any time that any Certificates are outstanding; or (y) the
imposition of any tax on either of REMIC I or REMIC II under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(m) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either of REMIC I or REMIC II will receive a fee or other compensation for
services nor permit either of REMIC I or REMIC II to receive any income from
assets other than "qualified mortgages" as defined in Section 860G(a)(3) of the
Code or "permitted investments" as defined in Section 860G(a)(5) of the Code.
Section 10.02. Administration of the Grantor Trusts.
(a) The REMIC Administrator shall treat the Additional Interest
Grantor Trust, for tax return preparation purposes, as a grantor trust under the
Code and shall treat the Additional Interest, the Additional Interest Account
and amounts held from time to time in the Additional Interest Account that
represent Additional Interest as separate assets of the Additional Interest
Grantor Trust, and not either of REMIC I or REMIC II, as permitted by Treasury
Regulations Section 1.860G-2(i)(1). The Class Z Certificates are hereby
designated as representing an undivided, beneficial interest in Additional
Interest payable on the Mortgage Loans and proceeds thereof in the Additional
Interest Account.
(b) The REMIC Administrator shall treat the Class A-4FL Grantor
Trust, for tax return preparation purposes, as a grantor trust under the Code
and shall treat the Class A-4FL Regular Interest, the Class A-4FL Swap Contract
and the Class A-4FL Floating Rate Account and amounts held from time to time in
the Class A-4FL Floating Rate Account as separate assets of the Class A-4FL
Grantor Trust, and not either of REMIC I or REMIC II, as permitted by Treasury
Regulations Section 1.860G-2(i)(1). The Class A-4FL Certificates, if issued, are
hereby designated as representing undivided, beneficial interests in the Class
A-4FL Grantor Trust Assets.
(c) The REMIC Administrator shall treat the Class A-MFL Grantor
Trust, for tax return preparation purposes, as a grantor trust under the Code
and shall treat the Class A-MFL Regular Interest, the Class A-MFL Swap Contract
and the Class A-MFL Floating Rate Account and amounts held from time to time in
the Class A-MFL Floating Rate Account as separate assets of the Class A-MFL
Grantor Trust, and not either of REMIC I or REMIC II, as permitted by Treasury
Regulations Section 1.860G-2(i)(1). The Class A-MFL Certificates, if issued, are
hereby designated as representing undivided, beneficial interests in the Class
A-MFL Grantor Trust Assets.
(d) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trusts (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(f) or 10.02(g)).
(e) The REMIC Administrator shall prepare, cause the Trustee to sign
and file when due all of the Tax Returns in respect of the Grantor Trusts as may
be applicable under the Grantor Trust Provisions. The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor. The other parties hereto shall provide on a timely
basis to the REMIC Administrator or its designee such information with respect
to the Additional Interest Grantor Trust as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its obligations
under this Section 10.02. Without limiting the generality of the foregoing, the
Depositor, within ten days following the REMIC Administrator's request therefor,
shall provide in writing to the REMIC Administrator such information as is
reasonably requested by the REMIC Administrator for tax purposes and compliance
with the administration and reporting duties under the Grantor Trust provisions,
and the REMIC Administrator's duty to perform its reporting and other tax
compliance obligations under this Section 10.02 shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the REMIC Administrator to perform such
obligations.
(f) The REMIC Administrator shall furnish or cause to be furnished
to the Class Z Certificateholders, the Class A-4FL Certificateholders and the
Class A-MFL Certificateholders on the cash or accrual method of accounting, as
applicable, such information as to their respective portions of the income and
expenses of the Grantor Trusts, at the time and in the manner required under the
Code, and shall perform on behalf of the Grantor Trusts all reporting and other
tax compliance duties that are required in respect thereof under the Code, the
Grantor Trust Provisions or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority.
(g) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of and to administer the Grantor Trusts as grantor trusts
under the Grantor Trust Provisions (and the Depositor, the Trustee, the Master
Servicer and the Special Servicer shall assist the REMIC Administrator to the
extent reasonably requested by the REMIC Administrator and to the extent of
information within the Depositor's, the Trustee's, the Master Servicer's or the
Special Servicer's possession or control). None of the REMIC Administrator, the
Master Servicer, the Special Servicer or the Trustee shall knowingly take (or
cause the Grantor Trusts to take) any action or fail to take (or fail to cause
to be taken) any action that, under the Grantor Trust Provisions, if taken or
not taken, as the case may be, could endanger the status of the Grantor Trusts
as grantor trusts under the Grantor Trust Provisions (any such endangerment of
grantor trust status, an "Adverse Grantor Trust Event"), unless the REMIC
Administrator has obtained or received an Opinion of Counsel (at the expense of
the party requesting such action or at the expense of the Trust Fund if the
REMIC Administrator seeks to take such action or to refrain from taking any
action for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse Grantor Trust Event. None of
the other parties hereto shall take any action or fail to take any action
(whether or not authorized hereunder) as to which the REMIC Administrator has
advised it in writing that the REMIC Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trusts, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer
nor the Special Servicer shall have any liability hereunder for any action taken
by it in accordance with the written instructions of the REMIC Administrator.
The REMIC Administrator 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 cost or expense of
the Trust Fund, the REMIC Administrator or the Trustee. Under no circumstances
may the REMIC Administrator vary the assets of the Grantor Trusts so as to take
advantage of variations in the market so as to improve the rate of return of
Holders of the Class Z Certificates, the Class A-4FL Certificates, the Class
A-4FL Component Certificates, the Class A-MFL Certificates or the Class A-MFL
Component Certificates.
(h) If any tax is imposed on a Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Section 10.02; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.02; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee, of any of its obligations under Article IV, Article
VIII or this Section 10.02; (v) the Depositor, if such tax arises out of or
results from a breach by the Depositor, of any of its obligations under Article
VI or this Section 10.02; or (v) the portion of the Trust Fund constituting the
related Grantor Trust in all other instances.
(i) The Trustee shall deliver or cause to be delivered the federal
taxpayer identification numbers of the Class A-4FL Grantor Trust and the Class
A-MFL Grantor Trust on an IRS Form W-9 to the Swap Counterparty as soon as
possible after the Swap Contracts are entered into (but no later than the first
payment date under the Swap Contracts) and, if requested by the Swap
Counterparty (unless not permitted under federal income tax law) an IRS Form
W-8IMY. Each non-exempt Holder of the Class A-4FL Certificates, the Class A-4FL
Component Certificates, the Class A-MFL Certificates or the Class A-MFL
Component Certificates shall be obligated pursuant to this Agreement to provide
applicable certification to the Trustee (with copies delivered or faxed directly
from such Certificateholder to the Swap Counterparty) to enable the Trustee to
make payments to the Holders of the Class A-4FL Certificates, the Class A-4FL
Component Certificates, the Class A-MFL Certificates or the Class A-MFL
Component Certificates under this Agreement without withholding. The Trustee may
forward any such certification received to the Swap Counterparty if requested.
(j) The Class A-4FL Grantor Trust and Class A-MFL Grantor Trust are
each a WHFIT that is a NMWHFIT. The Trustee will report as required under the
WHFIT Regulations to the extent such information as is reasonably necessary to
enable the Trustee to do so is provided to the Trustee on a timely basis. The
Trustee will not be liable for any tax reporting penalties that may arise under
the WHFIT Regulations as a result of the Depositor incorrectly determining the
status of the grantor trust as a WHFIT.
(k) The Trustee, in its discretion, will report required WHFIT
information using either the cash or accrual method, except to the extent the
WHFIT Regulations specifically require a different method. The Trustee will be
under no obligation to determine whether any Certificateholder uses the cash or
accrual method. The Trustee will make available WHFIT information to
Certificateholders annually. In addition, the Trustee will not be responsible or
liable for providing subsequently amended, revised or updated information to any
Certificateholder, unless requested by the certificate holder.
(l) The Trustee shall not be liable for failure to meet the
reporting requirements of the WHFIT Regulations nor for any penalties thereunder
if such failure is due to: (i) the lack of reasonably necessary information
being provided to the Trustee, or (ii) incomplete, inaccurate or untimely
information being provided to he Trustee. Each owner of a class of securities
representing, in whole or in part, beneficial ownership of an interest in a
WHFIT, by acceptance of its interest in such class of securities, will be deemed
to have agreed to provide the Trustee with information regarding any sale of
such securities, including the price, amount of proceeds and date of sale.
(m) To the extent required by the WHFIT Regulations, the Trustee
will use reasonable efforts to publish on an appropriate website the CUSIPs for
the certificates that represent ownership of a WHFIT. The CUSIPs so published
will represent the Rule 144A CUSIPs. The Trustee will not publish any associated
Reg S CUSIPs. The Trustee will make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIPs have been received. Absent the
receipt of a CUSIP, the Trustee will use a reasonable identifier number in lieu
of a CUSIP. The Trustee will not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP information.
(n) The Trustee shall be entitled to additional reasonable
compensation for changes in reporting required in respect of the WHFIT
Regulations that arise as a result of a change in the WHFIT Regulations or a
change in interpretation of the WHFIT Regulations by the IRS or the Depositor or
its counsel, if such change requires, in the Trustee's reasonable discretion, a
material increase in the Trustee's reporting obligations in respect of the
related Grantor Trust.
Section 10.03. Class A-4M Trust Administration.
(a) It is the intention of the parties hereto, and the Class A-4M
Component Certificateholders intend by their acceptance of their Certificates,
that the Class A-4M Trust be treated as a partnership for all federal and
applicable state and local income tax purposes, and that the Class A-4M Trust
Holders be treated as the partners of such partnership. The Class A-4M Trust
shall not (i) hold any assets other than the Class A-4FL Grantor Trust Interest,
the Class A-4M Put Agreement, the Class A-4M Funding Account and the Class A-4M
Trust Account and amounts on deposit therein from time to time or (ii) issue any
interests other than the Class A-4M Certificates and Class A-4MS Certificates.
The fiscal year (the "Fiscal Year") of the Class A-4M Trust shall be the
calendar year or such other taxable year as may be required by Section 706(b) of
the Code. The Trustee shall obtain a taxpayer identification number on behalf of
the Class A-4M Trust.
(b) A capital account (the "Capital Account") shall be established
and maintained for each Class A-4M Component Certificateholder to which shall be
credited such Holder's allocable share of income and gains and from which shall
be deducted expenses and losses of the Class A-4M Trust in the manner described
in Section 10.03(c). To the extent not provided for in the preceding sentence,
the Capital Accounts of the Class A-4M Component Certificateholder shall be
adjusted and maintained in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv). On the Closing Date, the opening balance of the Capital
Account of each Class A-4M Component Certificateholder shall be credited with
the amount that would be the "issue price" of the Class A-4M or Class A-4MS
Certificate if it were a debt instrument pursuant to Section 1273(b)(1) of the
Code. Subsequent to the Closing Date (i) the Capital Account of each Class A-4M
Component Certificateholder shall be credited with the amount of cash and the
fair market value of property other than cash contributed by such Holder to the
Class A-4M Trust and the amount of any item of taxable income or gain allocated
to such Holder and (ii) the Capital Account of each Class A-4M Component
Certificateholder shall be debited by the amount of any item of tax deduction or
loss allocated to such Holder and the amount of cash and the fair market value
of any property other than cash distributed to such Holder. Immediately prior to
any distribution of property in kind, the Class A-4M Component
Certificateholders' Capital Accounts shall be adjusted by assuming that the
distributed properties were sold for cash at their respective fair market values
as of the date of distribution and crediting or debiting each Class A-4M
Component Certificateholder's Capital Account with its respective share of the
hypothetical gains or losses resulting from such assumed sales in the same
manner as gains or losses on actual sales of such properties would be allocated
under Section 10.03(c) below.
(c) "Profit" and "loss" and any items of income, gain, expense or
loss referred to in this Section 10.03(c) shall be determined in accordance with
federal income tax accounting principles as modified by Treasury Regulations
Section 1.704-1(b)(2)(iv). All allocations of income, profits, gains, expenses,
and losses (and all items contained therein) for federal income tax purposes
shall be identical to all allocations of such items set forth in this Section
10.03(c), except as otherwise required by Section 704(c) of the Code and
Treasury Regulation Section 1.704-1(b)(4).
The Class A-4M Component Certificateholders agree that each item of
the Class A-4M Trust's income, gain, loss, or deduction entering into the
computation thereof for any Fiscal Year shall be allocated by first allocating
each such item of income, gain, loss, or deduction for each Interest Accrual
Period or portion thereof within such Fiscal Year (as if such Interest Accrual
Period or portion thereof were a complete fiscal year) and then aggregating the
allocations for each Interest Accrual Period or portion thereof within the
Fiscal Year. In the case of the transfer of any interest in the Class A-4M
Trust, the items of income, gain, loss or deduction allocated for any Interest
Accrual Period with respect to the transferred interest shall be allocated to
the Holder of that interest as of the first day of the Interest Accrual Period
following the end of such Interest Accrual Period. If the Tax Matters Partner
determines that this method of allocation of items of income, gain, loss or
deduction is not consistent with the requirements of the Code and applicable
Treasury Regulations, it may revise such method of allocation to conform with
such requirements.
(i) Income and gains of Class A-4M Trust shall be allocated for the
Fiscal Year (or other period) as of each corresponding Distribution Date
as follows:
(A) First, to the Class A-4M and Class A-4MS Certificates, pro
rata, an amount of gross income of the Class A-4M Trust equal to the
cumulative amount of losses and expense (less any amounts allocated
pursuant to this Section 10.03(c)(i)(A) in prior periods) previously
allocated to the Class A-4M and Class A-4MS Certificates pursuant to
Section 10.03(c)(ii);
(B) Second, to the Class A-4M Certificates an amount of gross
income of the Class A-4M Trust until the cumulative amount allocated
pursuant to this Section 10.03(c)(i)(B) for all periods is equal to
the amount of interest that would have accrued on the Class A-4M
Certificates during the related Interest Accrual Period and all
prior Interest Accrual Periods if the Class A-4M Certificates were
classified as indebtedness for federal income tax purposes (based on
the Class A-4M Interest Distribution Amount and issue price as
determined for federal income tax purposes of the Class A-4M
Certificates), plus the amount of any Class A-4M Liquidity Fees,
whether or not currently distributed;
(C) Third, to the Class A-4M and Class A-4MS Certificates, the
portion of any Prepayment Premiums deemed received and paid over to
the Swap Counterparty or actually received and distributed to such
Class; and
(D) Fourth, any remaining gross income shall be allocated 100%
to the Class A-4MS Certificates.
(ii) Losses and expenses of the Class A-4M Trust shall be allocated
as follows:
(A) First, to the Class A-4M Certificates, any Class A-4M
Liquidity Fees;
(B) Second, pro rata to the Class A-4M and Class A-4MS
Certificates (based on Capital Accounts), any expenses of the Class
A-4M Trust and losses on the Class A-4FL Grantor Trust Interest for
the related Interest Accrual Period, in each case due to defaults or
delinquencies on the Mortgage Loans; and
(C) Third, to the extent of any remaining amount of losses or
expenses of the Class A-4M Trust, including, but not limited to, any
net deduction under the Class A-4FL Swap Agreement, pro rata to the
Class A-4M and Class A-4MS Certificates (based on original Capital
Accounts).
(iii) No Class A-4M Component Certificateholder shall be required to
restore any deficit balance in its Capital Account.
(iv) Upon termination of the Class A-4M Trust pursuant to its terms,
the assets of the Class A-4M Trust shall be distributed to the Class A-4M
Trust Holders by:
(A) assuming the sale of all remaining assets at their fair
market values as of the date of termination of the Class A-4M Trust;
(B) debiting or crediting each Class A-4M Component
Certificateholder's Capital Account with such Holder's respective
share of hypothetical gains and losses resulting from such assumed
sales in the same manner as such Holder's Capital Account would be
debited or credited under Sections 10.03(b) and (c)(i) and (ii)
above for gains and losses on actual sales of such properties, and
(C) distributing all Class A-4M Trust assets to the Class A-4M
Component Certificateholders in accordance with their respective
Capital Account Balances as so adjusted on the final Distribution
Date, pro rata.
(d) A Class A-4M Certificate Conversion shall be treated as an
exchange by the related Holder of the Class A-4M Certificates and Class A-4MS
Certificates in retirement of such Certificates in exchange for the related
percentage of the Class A-4FL Grantor Trust Interest and termination of the
related portion of the Class A-4M Put Agreement, followed immediately by the
cancellation of such portion of the Class A-4FL Grantor Trust Interest in
exchange for Class A-4FL Certificates in authorized denominations.
(e) The Trustee shall (i) prepare and file or cause to be filed such
tax returns relating to the Class A-4M Trust (including a partnership
information return, IRS Form 1065) as are required by applicable federal, state,
and local law, (ii) cause such returns to be signed by the Tax Matters Partner,
(iii) make or cause to be made such elections as may from time to time be
required or appropriate under any applicable law at the direction of the Tax
Matters Partner (provided, however, no election under Section 754 of the Code
shall be made with respect to the Class A-4M Trust), (iv) prepare and deliver,
or cause to be prepared and delivered, to the Class A-4M Component
Certificateholders, in accordance with the Code, a Schedule K-1, a copy of the
Class A-4M Trust's tax return (IRS Form 1065), and such other reports setting
forth in sufficient detail all such information and data with respect to the
transactions effected by or involving the Class A-4M Trust during such Fiscal
Year as shall enable each Class A-4M Component Certificateholder to prepare its
federal, state, and local income tax returns in accordance with the laws then
prevailing, and (v) collect, or cause to be collected, any applicable
withholding tax as described in Section 3.03 with respect to income or
distributions to a Class A-4M Component Certificateholder. With respect to
performing its obligations under clause (e)(iv) of this paragraph, the Trustee
shall determine the Depository Participants who hold positions in the Class A-4M
and Class A-4MS Certificates by soliciting each month from the Depository, at
the expense of the Trustee, a list of such Depository Participants for such
Classes as of the prior Record Date. The Trustee shall send the Schedule K-1s
and other information and data referred to in clause (iv) of this paragraph to
such Depository Participants. The Trustee shall be entitled to conclusively rely
on either such list of Depository Participants solicited from the Depository for
purposes of delivering any tax returns or other tax related information
described in clause (iv) in this paragraph. The Trustee shall not be liable
hereunder for inaccurate or incomplete Depository Participant information on
such list and shall not be obligated to verify such information.
(e) The Holder of the largest Percentage Interest of the Class A-4MS
Certificates shall be designated as the tax matters partner for the Class A-4M
Trust within the meaning of Section 6231(a)(7) of the Code (the "Tax Matters
Partner"). Such Holder of the largest Percentage Interest of the Class A-4MS
Certificates hereby designates the Trustee as its agent to carry out all the
duties of the Tax Matters Partner. The Trustee, as agent, shall have the right
and obligation to take all actions authorized and required, respectively, by the
Code for the Tax Matters Partner. The Trustee, as agent, shall have the right to
retain professional assistance in respect of any audit or controversy proceeding
initiated with respect to the Class A-4M Trust by the IRS or any state or local
taxing authority, and all expenses and fees incurred by the Trustee on behalf of
the Class A-4M Trust shall in connection therewith constitute expenses of the
Trust Fund reimbursable to the Trustee in accordance with Section 8.05.
Section 10.04. Class A-MM Trust Administration.
(a) It is the intention of the parties hereto, and the Class A-MM
Component Certificateholders intend by their acceptance of their Certificates,
that the Class A-MM Trust be treated as a partnership for all federal and
applicable state and local income tax purposes, and that the Class A-MM Trust
Holders be treated as the partners of such partnership. The Class A-MM Trust
shall not (i) hold any assets other than the Class A-MFL Grantor Trust Interest,
the Class A-MM Put Agreement, the Class A-MM Funding Account and the Class A-MM
Trust Account and amounts on deposit therein from time to time or (ii) issue any
interests other than the Class A-MM Certificates and Class A-MMS Certificates.
The fiscal year (the "Fiscal Year") of the Class A-MM Trust shall be the
calendar year or such other taxable year as may be required by Section 706(b) of
the Code. The Trustee shall obtain a taxpayer identification number on behalf of
the Class A-MM Trust.
(b) A capital account (the "Capital Account") shall be established
and maintained for each Class A-MM Component Certificateholder to which shall be
credited such Holder's allocable share of income and gains and from which shall
be deducted expenses and losses of the Class A-MM Trust in the manner described
in Section 10.04(c). To the extent not provided for in the preceding sentence,
the Capital Accounts of the Class A-MM Component Certificateholder shall be
adjusted and maintained in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv). On the Closing Date, the opening balance of the Capital
Account of each Class A-MM Component Certificateholder shall be credited with
the amount that would be the "issue price" of the Class A-MM or Class A-MMS
Certificate if it were a debt instrument pursuant to Section 1273(b)(1) of the
Code. Subsequent to the Closing Date (i) the Capital Account of each Class A-MM
Component Certificateholder shall be credited with the amount of cash and the
fair market value of property other than cash contributed by such Holder to the
Class A-MM Trust and the amount of any item of taxable income or gain allocated
to such Holder and (ii) the Capital Account of each Class A-MM Component
Certificateholder shall be debited by the amount of any item of tax deduction or
loss allocated to such Holder and the amount of cash and the fair market value
of any property other than cash distributed to such Holder. Immediately prior to
any distribution of property in kind, the Class A-MM Component
Certificateholders' Capital Accounts shall be adjusted by assuming that the
distributed properties were sold for cash at their respective fair market values
as of the date of distribution and crediting or debiting each Class A-MM
Component Certificateholder's Capital Account with its respective share of the
hypothetical gains or losses resulting from such assumed sales in the same
manner as gains or losses on actual sales of such properties would be allocated
under Section 10.04(c) below.
(c) "Profit" and "loss" and any items of income, gain, expense or
loss referred to in this Section 10.04(c) shall be determined in accordance with
federal income tax accounting principles as modified by Treasury Regulations
Section 1.704-1(b)(2)(iv). All allocations of income, profits, gains, expenses,
and losses (and all items contained therein) for federal income tax purposes
shall be identical to all allocations of such items set forth in this Section
10.04(c), except as otherwise required by Section 704(c) of the Code and Section
1.704-1(b)(4) of the Treasury Regulations.
The Class A-MM Component Certificateholders agree that each item of
the Class A-MM Trust's income, gain, loss, or deduction entering into the
computation thereof for any Fiscal Year shall be allocated by first allocating
each such item of income, gain, loss, or deduction for each Interest Accrual
Period or portion thereof within such Fiscal Year (as if such Interest Accrual
Period or portion thereof were a complete fiscal year) and then aggregating the
allocations for each Interest Accrual Period or portion thereof within the
Fiscal Year. In the case of the transfer of any interest in the Class A-MM
Trust, the items of income, gain, loss or deduction allocated for any Interest
Accrual Period with respect to the transferred interest shall be allocated to
the Holder of that interest as of the first day of the Interest Accrual Period
following the end of such Interest Accrual Period. If the Tax Matters Partner
determines that this method of allocation of items of income, gain, loss or
deduction is not consistent with the requirements of the Code and applicable
Treasury Regulations, it may revise such method of allocation to conform with
such requirements.
(i) Income and gains of Class A-MM Trust shall be allocated for the
Fiscal Year (or other period) as of each corresponding Distribution Date
as follows:
(A) First, to the Class A-MM and Class A-MMS Certificates, pro
rata, an amount of gross income of the Class A-MM Trust equal to the
cumulative amount of losses and expense (less any amounts allocated
pursuant to this Section 10.04(c)(i)(A) in prior periods) previously
allocated to the Class A-MM and Class A-MMS Certificates pursuant to
Section 4.08(c)(ii);
(B) Second, to the Class A-MM Certificates an amount of gross
income of the Class A-MM Trust until the cumulative amount allocated
pursuant to this Section 10.04(c)(i)(B) for all periods is equal to
the amount of interest that would have accrued on the Class A-MM
Certificates during the related Interest Accrual Period and all
prior Interest Accrual Periods if the Class A-MM Certificates were
classified as indebtedness for federal income tax purposes (based on
the Class A-MM Interest Distribution Amount and issue price as
determined for federal income tax purposes of the Class A-MM
Certificates), plus the amount of any Class A-MM Liquidity Fees,
whether or not currently distributed;
(C) Third, to the Class A-MM and Class A-MMS Certificates, the
portion of any Prepayment Premiums deemed received and paid over to
the Swap Counterparty or actually received and distributed to such
Class; and
(D) Fourth, any remaining gross income shall be allocated 100%
to the Class A-MMS Certificates.
(ii) Losses and expenses of the Class A-MM Trust shall be allocated
as follows:
(A) First, to the Class A-MM Certificates, any Class A-MM
Liquidity Fees;
(B) Second, pro rata to the Class A-MM and Class A-MMS
Certificates (based on Capital Accounts), any expenses of the Class
A-MM Trust and losses on the Class A-MFL Grantor Trust Interest for
the related Interest Accrual Period, in each case due to defaults or
delinquencies on the Mortgage Loans; and
(C) Third, to the Class A-MMS Certificates, to the extent of
any remaining amount of losses or expenses of the Class A-MM Trust,
including, but not limited to, any net deduction under the Class
A-MFL Swap Agreement pro rata to the Class A-MM and Class A-MMS
Certificates (based on original Capital Accounts).
(iii) No Class A-MM Component Certificateholder shall be required to
restore any deficit balance in its Capital Account.
(iv) Upon termination of the Class A-MM Trust pursuant to its terms,
the assets of the Class A-MM Trust shall be distributed to the Class A-MM
Trust Holders by:
(A) assuming the sale of all remaining assets at their fair
market values as of the date of termination of the Class A-MM Trust;
(B) debiting or crediting each Class A-MM Component
Certificateholder's Capital Account with such Holder's respective
share of hypothetical gains and losses resulting from such assumed
sales in the same manner as such Holder's Capital Account would be
debited or credited under Sections 10.04(b) and (c)(i) and (ii)
above for gains and losses on actual sales of such properties, and
(C) distributing all Class A-MM Trust assets to the Class A-MM
Component Certificateholders in accordance with their respective
Capital Account Balances as so adjusted on the final Distribution
Date, pro rata.
(d) A Class A-MM Certificate Conversion shall be treated as an
exchange by the related Holder of the Class A-MM Certificates and Class A-MMS
Certificates in retirement of such Certificates in exchange for the related
percentage of the Class A-MFL Grantor Trust Interest and termination of the
related portion of the Class A-MM Put Agreement, followed immediately by the
cancellation of such portion of the Class A-MFL Grantor Trust Interest in
exchange for Class A-MFL Certificates in authorized denominations.
(e) The Trustee shall (i) prepare and file or cause to be prepared
and filed such tax returns relating to the Class A-MM Trust (including a
partnership information return, IRS Form 1065) as are required by applicable
federal, state, and local law, (ii) cause such returns to be signed by the Tax
Matters Partner, (iii) make or cause to be made such elections as may from time
to time be required or appropriate under any applicable law at the direction of
the Tax Matters Partner (provided, however, no election under Section 754 of the
Code shall be made with respect to the Class A-MM Trust), (iv) prepare and
deliver, or cause to be prepared and delivered, to the Class A-MM Component
Certificateholders, in accordance with the Code, a Schedule K-1, a copy of the
Class A-MM Trust's tax return (IRS Form 1065), and such other reports setting
forth in sufficient detail all such information and data with respect to the
transactions effected by or involving the Class A-MM Trust during such Fiscal
Year as shall enable each Class A-MM Component Certificateholder to prepare its
federal, state, and local income tax returns in accordance with the laws then
prevailing, and (v) collect, or cause to be collected, any applicable
withholding tax as described in Section 3.03 with respect to income or
distributions to a Class A-MM Component Certificateholder. With respect to
performing its obligations under clause (e)(iv) of this paragraph, the Trustee
shall determine the Depository Participants who hold positions in the Class A-MM
and Class A-MMS Certificates by soliciting each month from the Depository, at
the expense of the Trustee, a list of such Depository Participants for such
Classes as of the prior Record Date. The Trustee shall send the Schedule K-1s
and other information and data referred to in clause (iv) of this paragraph to
such Depository Participants. The Trustee shall be entitled to conclusively rely
on either such list of Depository Participants solicited from the Depository for
purposes of delivering any tax returns or other tax related information
described in clause (iv) in this paragraph. The Trustee shall not be liable
hereunder for inaccurate or incomplete Depository Participant information on
such list and shall not be obligated to verify such information.
The Holder of the largest Percentage Interest of the Class A-MMS
Certificates shall be designated as the tax matters partner for the Class A-MM
Trust within the meaning of Section 6231(a)(7) of the Code (the "Tax Matters
Partner"). Such Holder of the largest Percentage Interest of the Class A-MMS
Certificates hereby designates the Trustee as its agent to carry out all the
duties of the Tax Matters Partner. The Trustee, as agent, shall have the right
and obligation to take all actions authorized and required, respectively, by the
Code for the Tax Matters Partner. The Trustee, as agent, shall have the right to
retain professional assistance in respect of any audit or controversy proceeding
initiated with respect to the Class A-MM Trust by the IRS or any state or local
taxing authority, and all expenses and fees incurred by the Trustee on behalf of
the Class A-MM Trust shall in connection therewith constitute expenses of the
Class A-MM Trust reimbursable to the Trustee in accordance with Section 8.05.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders or Companion
Holders, (i) to cure any ambiguity, (ii) to correct, modify or supplement any
provision herein which may be inconsistent with any other provision herein,
(iii) to add any other provisions with respect to matters or questions arising
hereunder which shall not be inconsistent with the provisions hereof, (iv) to
relax or eliminate any requirement hereunder imposed by the Grantor Trust
Provisions or the REMIC Provisions if the Grantor Trust Provisions or the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated, or (v) if such amendment, as evidenced by an Opinion of
Counsel (at the expense of the Trust Fund, in the case of any amendment
requested by the Master Servicer or Special Servicer that protects or is in
furtherance of the interests of the Certificateholders, and otherwise at the
expense of the party seeking such amendment) delivered to the Master Servicer,
the Special Servicer and the Trustee, is advisable or reasonably necessary to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action which, if made effective, would
apply retroactively to the Grantor Trusts or REMIC I or REMIC II created
hereunder at least from the effective date of such amendment, or would be
necessary to avoid the occurrence of a prohibited transaction or to reduce the
incidence of any tax that would arise from any actions taken with respect to the
operation of either such REMIC or to facilitate administration of and reporting
duties with respect to either Grantor Trust in accordance with the Grantor Trust
provisions to comply with any requirements imposed by the Commission with
respect to any adopted temporary or final regulation or other written official
announcement or interpretation relating to the securities laws which, would
apply retroactively to the Depositor, any Underwriter or the Trust Fund;
provided that no such amendment may significantly change the activities of the
Trust Fund in a manner that would adversely affect the Trust Fund's status as a
"qualifying special purpose entity" for purposes of FAS 140; provided, further,
such amendment (except any amendment described in clause (v) above) shall not,
as evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) obtained by or
delivered to the Master Servicer, the Special Servicer and the Trustee,
adversely affect in any material respect the interests of any Certificateholder
or Companion Holder with respect to the Pari Passu Mortgage Loan; provided,
further, the Master Servicer, the Special Servicer and the Trustee shall have
first obtained from each Rating Agency written confirmation that such amendment
will not result in the qualification, downgrade or withdrawal of the rating on
any Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans that 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 a Companion Holder, without the consent of such Companion Holder,
(ii) as evidenced by an Opinion of Counsel obtained by or delivered to the
Master Servicer, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of the Holders of any Class of Certificates or
the interests of a Companion Holder in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class or the
consent of such Companion Holders, as the case may be, (iii) modify the
provisions of this Section 11.01 without the consent of the Holders of all
Certificates then outstanding and the consent of all Companion Holders, (iv)
modify the provisions of Section 3.20 or the definition of Servicing Standard
without the consent of the Holders of Certificates entitled to all of the Voting
Rights and the consent of all Companion Holders or (v) modify the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement (other than
the next succeeding sentence), for purposes of the giving or withholding of
consents pursuant to this Section 11.01, 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 matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans. Any amendment contemplated by this Section 11.01(b) that adversely
affects the status of the Trust Fund as a "qualifying special purpose entity"
under FAS 140 shall require the agreement of the Depositor, the Master Servicer,
the Special Servicer and the Trustee and the consent of the Holders of
Certificates entitled to at least 51% of the Voting Rights (without regard to
Certificates held by the Depositor, any Affiliate of the Depositor, any Mortgage
Loan Seller or any Affiliate of any Mortgage Loan Seller) and at least 51% of
the most subordinate outstanding Class.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either of REMIC I or REMIC II pursuant to the REMIC Provisions or on any of the
Grantor Trusts or cause either of REMIC I or REMIC II to fail to qualify as a
REMIC or any of the Grantor Trusts to fail to qualify as a grantor trust at any
time that any Certificates are outstanding and (ii) such amendment complies with
the provisions of this Section 11.01. The Trustee shall not consent to any
amendment to the Swap Contracts or the Put Agreements unless it shall first have
obtained from each Rating Agency confirmation that such amendment will not
result in the qualification, downgrade or withdrawal of the rating assigned to
any Class of Certificates to which a rating has been assigned by such Rating
Agency.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder and Companion Holder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 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) Each of the Master Servicer, the Special Servicer and the
Trustee may but 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 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section
11.01(a), (b) or (c) shall be payable out of the Certificate Account or the
Distribution Account pursuant to Sections 3.05 and 4.01. Notwithstanding any
contrary provisions of this Agreement, this Agreement may not be amended in a
manner that would adversely affect the distributions to the Swap Counterparty or
the Class A-4FL Certificates and Class A-4FL Component Certificates or Class
A-MFL Certificates and Class A-MFL Component Certificates, as applicable, or the
rights of the Swap Counterparty under the Swap Contracts or the rights of the
holders of the Class A-4FL Certificates and Class A-4FL Component Certificates
or Class A-MFL Certificates and Class A-MFL Component Certificates, as
applicable, without the consent of the Swap Counterparty and 66-2/3% of the
Holders of the Class A-4FL Certificates and Class A-4FL Component Certificates
or Class A-MFL Certificates and Class A-MFL Component Certificates, as
applicable.
(h) Notwithstanding anything in this Agreement to the contrary, the
Trustee shall deliver a copy of any proposed amendment to this Agreement to the
Swap Counterparty and any amendment to this Agreement that could reasonably
materially and adversely affect the Swap Counterparty (whether or not the
related Swap Contract is specifically referred to or identified in the proposed
amendment) shall be subject to the Swap Counterparty's prior written consent.
Further, any amendment to this Agreement that could reasonably materially and
adversely affect the Class A-4M Liquidity Provider or Class A-MM Liquidity
Provider (whether or not either Put Agreement is specifically referred to or
identified in the proposed amendment) shall be subject to the Class A-4M
Liquidity Provider or Class A-MM Liquidity Provider's prior written consent, as
applicable.
Section 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, the Trustee shall have no obligation or
responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder 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 from time to time as
partners or members of an association; nor shall any Certificateholder 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 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 Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights held by all Certificateholders shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 11.04. 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 11.05. Notices.
Any communications provided for or permitted hereunder shall, unless
otherwise expressly provided herein, be in writing by mail, or by facsimile, and
shall be deemed to have been duly given when delivered to: (i) in the case of
the Depositor, Wachovia Commercial Mortgage Securities, Inc., 301 South College
Street, Charlotte, North Carolina 28288, Attention: Charles L. Culbreth, Robert
J. Koontz, Elizabeth K. Stinson and Lars A. Carlsten, facsimile number: (704)
383-7639; (ii) in the case of the Master Servicer, Wachovia Bank, National
Association, NC 1075, 8739 Research Drive URP4, Charlotte, North Carolina
28262-1075, Attention: Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32, facsimile number: (704)
715-0036; (iii) in the case of the Special Servicer, CWCapital Asset Management
LLC, 701 Thirteenth Street, NW, Suite 1000, Washington, D.C. 20005, Attention:
David Iannarone (WBCMT 2007-C32), facsimile (202) 466-1834, with a copy to
CWCapital Asset Management LLC, One Charles River Place, 63 Kendrick Street,
Needham, Massachusetts 02494, Attention: Jill Hyde (WBCMT 2007-C32), facsimile
(781) 707-9397; (iv) in the case of the Trustee, Wells Fargo Bank, N.A., 9062
Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust
Services (CMBS) Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32, facsimile number: (410) 715-2380;
(v) in the case of the Underwriters to each of Wachovia Capital Markets, LLC,
301 South College Street, Charlotte, North Carolina 28288-1075, Attention:
Charles L. Culbreth, H. Royer Culp, Jr., Elizabeth K. Stinson and Lars A.
Carlsten, facsimile number: (704) 715-0066, Barclays Capital Inc., 200 Park
Avenue, New York, New York 10166, Attention: Kristen Rodriguez, with a copy to
the Barclays' General Counsel's office; and Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Attention: Emily Brooks; (vi) in the case of
the initial Controlling Class Representative, American Capital Strategies, Ltd.,
Two Bethesda Metro Center, 14th Floor, Bethesda, MD 20814, Attention: Douglas
Cooper, facsimile number: (301) 654-6714; (vii) in the case of the Rating
Agencies to each of Moody's Investors Service, Inc., 99 Church Street, New York,
New York 10007, Attention: Commercial Mortgage Surveillance; and Standard &
Poor's Ratings Services, 55 Water Street, New York, New York 10041-0003,
Attention: CMBS Surveillance Group, facsimile number: (212) 438-2662; (viii) in
the case of the Swap Counterparty and Liquidity Provider, Wachovia Bank,
National Association, 301 South College Street, Charlotte, North Carolina
28288-0166, Attention: Spencer Langston, facsimile number: (704) 374-3254 with a
copy to Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Suite 2400,
Charlotte, North Carolina 28202, Attention: Francisco Linares, Esq., facsimile
number: (704) 348-5200 and (ix) in the case of any Companion Holder, the
address(es) for notice to such Companion Holder as set forth in the related
Intercreditor Agreement 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; (x) in the case
of the Placement Agents, Wachovia Capital Markets, LLC, 301 South College
Street, Charlotte, North Carolina 28288-1075, Attention: Charles L. Culbreth, H.
Royer Culp, Jr., Elizabeth K. Stinson and Lars A. Carlsten, facsimile number:
(704) 715-0066 and Deutsche Bank Securities Inc., 60 Wall Street, New York, New
York 10005, Attention: Vaughn Smith.
Section 11.06. 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 11.07. 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, 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 constituting the Trust
Fund.
Section 11.08. Streit Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, to the extent that such Section 126 shall
not have any effect, and if said Section 126 should at any time be repealed or
cease to apply to this Agreement or be construed by judicial decision to be
inapplicable, said Section 126 shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail;
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
Section 11.09. 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. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent; provided, that
the Swap Counterparty, the Class A-4M Liquidity Provider and the Class A-MM
Liquidity Provider shall receive 15 Business Days' written notice of any such
amendment. The related Non-Serviced Trustee, the Non-Serviced Master Servicer
and the related Non-Serviced Special Servicer shall be third party beneficiaries
to this Agreement solely with respect to the reimbursement of nonrecoverable
advances made by such party under the related Non-Serviced Pooling and Servicing
Agreement as provided in Section 3.05 or with respect to any other amounts owed
to such Persons pursuant to the related Intercreditor Agreement. No other
Person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement; provided that
the Companion Holders, the Class A-MM Liquidity Provider, the Class A-4M
Liquidity Provider and the Swap Counterparty are intended third party
beneficiaries hereunder.
Notwithstanding the foregoing, any rights of the Swap Counterparty,
the Class A-4M Liquidity Provider and the Class A-MM Liquidity Provider to
receive any payment in accordance with the terms of this Agreement: (i) shall be
as determined in the Swap Contracts and the Put Agreements and the agreements to
which any of the Swap Counterparty, the Class A-4M Liquidity Provider and the
Class A-MM Liquidity Provider are parties (as opposed to third party
beneficiaries), as applicable, and (ii) are limited in recourse to the Trust
Fund and to the extent the proceeds of the Trust Fund, when applied as set forth
herein, are insufficient to meet all obligations to the Swap Counterparty, the
Class A-4M Liquidity Provider and the Class A-MM Liquidity Provider, any such
outstanding obligations and any claims shall be extinguished and shall not
thereafter revive.
Section 11.10. 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 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
and the Controlling Class Representative 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 merger, consolidation, resignation or termination of the
Trustee, the Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by any of the Mortgage Loan
Sellers pursuant to the applicable Mortgage Loan Purchase Agreement;
(v) any change in the location of the Servicing Accounts, the
Interest Reserve Accounts, the Certificate Account, the Floating Rate
Accounts, the Gain-on-Sale Reserve Account, the Companion Distribution
Account, the Class A-4M Funding Account, the Class A-MM Funding Account,
the Class A-4M Trust Account, the Class A-MM Trust Account or the
Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency and the
Controlling Class Representative with respect to a non-performing or Specially
Serviced Mortgage Loan such information as the Rating Agency or Controlling
Class Representative shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer, the
Special Servicer and the Trustee shall promptly furnish, or cause to be
furnished, to each Rating Agency copies of the following items:
(i) each of the annual statements as to compliance described in
Section 3.13;
(ii) each of the annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officer's Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency and
the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
(g) Notwithstanding any provision herein to the contrary each of the
Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
Section 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
[SIGNATURE PAGES FOLLOW]
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.
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC., Depositor
By: /s/ H. Royer Culp, Jr.
-------------------------------------
Name: H. Royer Culp, Jr.
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
By: /s/ Joseph Newell, III
-------------------------------------
Name: Joseph Newell, III
Title: Associate
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
By: /s/ David B. Iannarone
-------------------------------------
Name: David B. Iannarone
Title: Managing Director
WELLS FARGO BANK, N.A., Trustee
By: /s/ Jennifer L. Richardson
-------------------------------------
Name: Jennifer L. Richardson
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: [___]% per annum Class Principal Balance of the Class A-1
Certificates as of the Closing Date: $25,707,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-1 Certificate as of the Closing Date:
$25,707,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-1-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS
A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal amount of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-1 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-1 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-1 Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-1 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-1 Certificates are exchangeable for new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-1
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2-1
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-2
Certificates as of the Closing Date: $946,379,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-2 Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-2-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS
A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-2 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-2 Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-2
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-2-2
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-2
Certificates as of the Closing Date: $946,379,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-2 Certificate as of the Closing Date:
$446,379,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-2-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION, OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS
A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-2 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-2 Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-2 Certificates are exchangeable for new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-2 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-2
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS A-PB CERTIFICATE
CLASS A-PB COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-PB
Certificates as of the Closing Date: $62,827,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-PB Certificate as of the Closing Date:
$62,827,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-PB-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-PB Certificate (obtained by
dividing the principal amount of this Class A-PB Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-PB Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-PB Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-PB Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-PB Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-PB Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-PB Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-PB Certificates are exchangeable for new Class A-PB Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-PB Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-PB Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-PB Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-PB
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-PB Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________. This information is provided by
________________________________, the Assignee named above, or
____________________________________, as its agent.
EXHIBIT A-4-1
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-3
Certificates as of the Closing Date: $948,589,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-3 Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-3-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal amount of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-3 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-3 Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-3 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-3 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-3 Certificates are exchangeable for new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-3 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-3
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-3
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________
for the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-4-2
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-3
Certificates as of the Closing Date: $948,589,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-3 Certificate as of the Closing Date:
$448,589,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-3-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal amount of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-3 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-3 Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-3 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-3 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-3 Certificates are exchangeable for new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-3 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-3
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-3
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS A-4M CERTIFICATE
CLASS A-4M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: LIBOR + 0.00% Class Principal Balance of the Class A-4M
Certificates as of the Closing Date: $227,273,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-4M Certificate as of the Closing Date:
$227,273,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-4M-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" SUBJECT TO SECTION 4975
OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE, LOCAL, OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING
ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN (EACH, A "PLAN") UNLESS (A) IT
IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND (B) AT LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION
84-14, 90-1, 91-38, 95-60 OR 96-23 OR A SIMILAR EXEMPTION UNDER SIMILAR LAW
APPLIES TO THE HOLDER'S ACQUISITION AND HOLDING OF THIS CERTIFICATE. EACH PERSON
WHO ACQUIRES THIS CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY
CERTIFICATE, DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES
AND THE CLASS A-4FL REGULAR INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-4M Certificate (obtained by
dividing the principal amount of this Class A-4M Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-4M Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-4M Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-4M Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-4M Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-4M Certificates
will be 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, but excluding, the
related Distribution Date, calculated on the basis of the actual number of days
in such Interest Accrual Period and assuming each year has 360 days; provided,
however, in the event any such Class of Certificates converts to accrue interest
at a fixed rate of interest, the Interest Accrual Period will be the preceding
calendar month, which will be deemed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-4M Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-4M Certificates are exchangeable for new Class A-4M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-4M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-4M 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-4M Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-4M
Certificate without registration or qualification. Any Class A-4M
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-4M Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-4M Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-4M Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-4M
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4M Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________
for the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS A-4MS CERTIFICATE
CLASS A-4MS COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-4MS
Certificates as of the Closing Date: $22,727,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-4MS Certificate as of the Closing Date:
$22,727,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-4MS-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES
AND THE CLASS A-4FL REGULAR INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-4MS Certificate (obtained by
dividing the principal amount of this Class A-4MS Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-4MS Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-4MS Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-4MS Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-4MS Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-4MS
Certificates will be 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, but excluding,
the related Distribution Date, calculated on the basis of the actual number of
days in such Interest Accrual Period and assuming each year has 360 days;
provided, however, in the event any such Class of Certificates converts to
accrue interest at a fixed rate of interest, the Interest Accrual Period will be
the preceding calendar month, which will be deemed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-4MS Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-4MS Certificates are exchangeable for new Class A-4MS Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-4MS Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-4MS 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-4MS Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-4MS
Certificate without registration or qualification. Any Class A-4MS
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-4MS Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-4MS Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-4MS Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-4MS
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4MS Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-1A
Certificates as of the Closing Date: $443,196,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-1A Certificate as of the Closing Date:
$443,196,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-1A-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES AND THE CLASS A-3 CERTIFICATES AND THE CLASS A-4FL REGULAR
INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST
FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1A Certificate (obtained by
dividing the principal amount of this Class A-1A Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-1A Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-1A Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee"), which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-1A Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-1A Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-1A Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1A Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-1A Certificates are exchangeable for new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-1A Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1A Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-1A Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-1A
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-1
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-1 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-2
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-2 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-3
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-3 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-4
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-4 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-5
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-5 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-6
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-6 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-7
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$500,000,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-7 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-8-8
FORM OF CLASS IO CERTIFICATE
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable IO Aggregate Certificate Notional Amount of the
Class IO Certificates as of the Closing Date:
$3,823,853,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Notional Amount of this
1, 2007 Class IO Certificate as of the Closing Date:
$323,853,068
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. IO-8 CUSIP No. [_]
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS
THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS IO
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by the Class IO Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to the Class IO
Certificates for each Distribution Date is as provided in the Agreement. All
distributions made under the Agreement on the Class IO Certificates will be made
by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class IO Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
IO Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class IO
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS A-MM CERTIFICATE
CLASS A-MM COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: LIBOR + 0.020% Class Principal Balance of the Class A-MM
Certificates as of the Closing Date: $347,623,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-MM Certificate as of the Closing Date:
$347,623,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-MM-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" SUBJECT TO SECTION 4975
OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE, LOCAL, OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING
ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN (EACH, A "PLAN") UNLESS (A) IT
IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND (B) AT LEAST ONE OF PROHIBITED TRANSACTION CLASS EXEMPTION
84-14, 90-1, 91-38, 95-60 OR 96-23 OR A SIMILAR EXEMPTION UNDER SIMILAR LAW
APPLIES TO THE HOLDER'S ACQUISITION AND HOLDING OF THIS CERTIFICATE. EACH PERSON
WHO ACQUIRES THIS CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY
CERTIFICATE, DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES AND THE CLASS IO CERTIFICATES OF THE SAME SERIES AND THE CLASS
A-4FL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-MM Certificate (obtained by
dividing the principal amount of this Class A-MM Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-MM Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-MM Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-MM Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-MM Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-MM Certificates
will be 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, but excluding, the
related Distribution Date, calculated on the basis of the actual number of days
in such Interest Accrual Period and assuming each year has 360 days; provided,
however, in the event any such Class of Certificates converts to accrue interest
at a fixed rate of interest, the Interest Accrual Period will be the preceding
calendar month, which will be deemed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-MM Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-MM Certificates are exchangeable for new Class A-MM Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-MM Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-MM 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-MM Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-MM
Certificate without registration or qualification. Any Class A-MM
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-MM Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-MM Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-MM Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-MM
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-MM Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS A-MMS CERTIFICATE
CLASS A-MMS COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-MMS
Certificates as of the Closing Date: $34,762,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-MMS Certificate as of the Closing Date:
$34,762,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-MMS-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES AND THE CLASS IO CERTIFICATES OF THE SAME SERIES AND THE CLASS
A-4FL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-MMS Certificate (obtained by
dividing the principal amount of this Class A-MMS Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-MMS Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-MMS Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-MMS Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
the Class A-MMS Certificates will be made by Wells Fargo Bank, N.A., as paying
agent (the "Paying Agent"), by wire transfer of immediately available funds to
the account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-MMS
Certificates will be 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, but excluding,
the related Distribution Date, calculated on the basis of the actual number of
days in such Interest Accrual Period and assuming each year has 360 days;
provided, however, in the event any such Class of Certificates converts to
accrue interest at a fixed rate of interest, the Interest Accrual Period will be
the preceding calendar month, which will be deemed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-MMS Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-MMS Certificates are exchangeable for new Class A-MMS Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-MMS Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-MMS 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-MMS Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-MMS
Certificate without registration or qualification. Any Class A-MMS
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-MMS Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-MMS Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-MMS Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-MMS
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-MMS Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS A-J CERTIFICATE
CLASS A-J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class A-J
Certificates as of the Closing Date: $253,330,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-J Certificate as of the Closing Date:
$253,330,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-J-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES AND THE CLASS IO CERTIFICATES OF THE SAME SERIES AND THE CLASS
A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, AND THE CLASS A-1A CERTIFICATES OF THE SAME SERIES AND THE CLASS
A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q
AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-J Certificate (obtained by
dividing the principal amount of this Class A-J Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-J Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-J Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Wachovia
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), CWCapital Asset Management LLC (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Wells Fargo Bank, N.A. (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-J Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-J Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-J Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-J Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-J Certificates are exchangeable for new Class A-J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-J
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-J Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class B Certificates
as of the Closing Date: $43,019,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class B Certificate as of the Closing Date:
$43,019,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. B-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES AND THE CLASS A-J CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES AND THE CLASS A-J CERTIFICATES OF THE
SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS
P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT
REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date in
that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class B Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class B Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class B Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
B Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class B
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-13
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class C Certificates
as of the Closing Date: $47,798,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class C Certificate as of the Closing Date:
$47,798,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. C-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES AND THE
CLASS B CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES AND THE
CLASS B CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS
E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS
O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class C Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class C Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class C Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
C Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class C
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-14
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class D Certificates
as of the Closing Date: $28,679,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class D Certificate as of the Closing Date:
$28,679,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. D-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME SERIES AND THE CLASS
A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class D Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class D Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class D Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class D Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
D Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, Special Servicer or
the Majority Subordinate Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder to purchase from
the Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class D Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-15
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class E Certificates
as of the Closing Date: $28,679,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class E Certificate as of the Closing Date:
$28,679,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. E-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D CERTIFICATES OF THE
SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS
J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by dividing
the principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class E Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class E Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class E Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
E Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class E Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, Special Servicer or
the Majority Subordinate Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder to purchase from
the Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class E Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________
for the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-16
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class F Certificates
as of the Closing Date: $38,238,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class F Certificate as of the Closing Date:
$38,238,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. F-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES AND THE
CLASS E CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES AND THE CLASS
E CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class F Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class F Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class F Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, Special Servicer or
the Majority Subordinate Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder to purchase from
the Trust Fund all Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class F Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-17
FORM OF CLASS A-4FL CERTIFICATE
CLASS A-4FL COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: LIBOR + 0.175% Class Principal Balance of the Class A-4FL
Certificates as of the Closing Date: $250,000,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-4FL Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-4FL-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
BENEFICIAL INTEREST IN A GRANTOR TRUST UNDER SUBPART E, PART I OF SUBCHAPTER J
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), WHICH GRANTOR
TRUST CONSISTS OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE (THE "CLASS A-4FL REGULAR INTEREST"), THE RELATED SWAP
CONTRACT AND THE RELATED FLOATING RATE ACCOUNT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" SUBJECT TO SECTION 4975
OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE, LOCAL, OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING
ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN (EACH, A "PLAN") UNLESS (A) IT
IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND (B) THE DECISION TO ACQUIRE THIS CERTIFICATE WAS MADE BY A
QUALIFIED PROFESSIONAL ASSET MANAGER (AS DEFINED IN PTE 84-14), AN IN-HOUSE
ASSET MANAGER (AS DEFINED IN PTE 96-23), OR A PLAN FIDUCIARY WITH TOTAL ASSETS
UNDER MANAGEMENT OF AT LEAST $100 MILLION AT THE TIME THE CERTIFICATE IS
ACQUIRED. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE REQUIRED (OR, IN
THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-MFL REGULAR INTEREST AND THE CLASS A-J, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1 CERTIFICATES, THE CLASS A-2 CERTIFICATES, THE CLASS
A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS A-1A CERTIFICATES
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED ON 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 CERTIFICATE MAY CONVERT TO A FIXED PER
ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND SERVICING
AGREEMENT.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-4FL Certificate in that certain
beneficial ownership interest evidenced by the Class A-4FL Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-4FL Certificates on the applicable Distribution
Date pursuant to the Agreement. The Pass-Through Rate applicable to the Class
A-4FL Certificates for each Distribution Date is as provided in the Agreement.
All distributions made under the Agreement on the Class A-4FL Certificates will
be made by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-4FL
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class A-4FL Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-4FL Certificates are exchangeable for new Class A-4FL Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-4FL Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-4FL 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-4FL Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-4FL
Certificate without registration or qualification. Any Class A-4FL
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-4FL Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-4FL Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-4FL Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-4FL
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4FL Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-18
FORM OF CLASS A-MFL CERTIFICATE
CLASS A-MFL COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: LIBOR + 0.220% Class Principal Balance of the Class A-MFL
Certificates as of the Closing Date: $382,385,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class A-MFL Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. A-MFL-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
BENEFICIAL INTEREST IN A GRANTOR TRUST UNDER SUBPART E, PART I OF SUBCHAPTER J
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), WHICH GRANTOR
TRUST CONSISTS OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT (A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G
AND 860D OF THE CODE (THE "CLASS A-MFL REGULAR INTEREST"), THE RELATED SWAP
CONTRACT AND THE RELATED FLOATING RATE ACCOUNT.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), ANY "PLAN" SUBJECT TO SECTION 4975
OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE, LOCAL, OR OTHER LAW SUBSTANTIVELY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, OR ANY PERSON ACTING
ON BEHALF OF OR WITH ANY ASSETS OF ANY SUCH PLAN (EACH, A "PLAN") UNLESS (A) IT
IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND (B) THE DECISION TO ACQUIRE THIS CERTIFICATE WAS MADE BY A
QUALIFIED PROFESSIONAL ASSET MANAGER (AS DEFINED IN PTE 84-14), AN IN-HOUSE
ASSET MANAGER (AS DEFINED IN PTE 96-23), OR A PLAN FIDUCIARY WITH TOTAL ASSETS
UNDER MANAGEMENT OF AT LEAST $100 MILLION AT THE TIME THE CERTIFICATE IS
ACQUIRED. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE REQUIRED (OR, IN
THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E, CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P,
CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-J CERTIFICATES AND THE CLASS A-1A CERTIFICATES AND THE
CLASS A-4FL REGULAR INTEREST MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
THE PASS-THROUGH RATE ON THIS CERTIFICATE IS BASED ON 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 CERTIFICATE MAY CONVERT TO A FIXED PER
ANNUM RATE UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE POOLING AND SERVICING
AGREEMENT.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-MFL Certificate in that certain
beneficial ownership interest evidenced by the Class A-MFL Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Wachovia Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-MFL Certificates on the applicable Distribution
Date pursuant to the Agreement. The Pass-Through Rate applicable to the Class
A-MFL Certificates for each Distribution Date is as provided in the Agreement.
All distributions made under the Agreement on the Class A-MFL Certificates will
be made by Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent 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 distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
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 the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-MFL
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class A-MFL Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
the Class A-MFL Certificates are exchangeable for new Class A-MFL Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-MFL Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class A-MFL 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2 or Exhibit F-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee, Paying Agent or the Certificate
Registrar is obligated to register or qualify the Class A-MFL Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class A-MFL
Certificate without registration or qualification. Any Class A-MFL
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class A-MFL Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class A-MFL Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-MFL Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-MFL
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-MFL Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-19-1
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class G Certificates
as of the Closing Date: $43,018,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class G Certificate as of the Closing Date:
$43,018,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. G-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N,
CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class G Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class G Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class G Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class G Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class G Certificate without registration or qualification. Any
Class G Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class G
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________
for the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-19-2
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class G Certificates
as of the Closing Date: $43,018,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class G Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. G-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N,
CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class G Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class G Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class G Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class G Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class G Certificate without registration or qualification. Any
Class G Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class G
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-20-1
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class H Certificates
as of the Closing Date: $47,799,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class H Certificate as of the Closing Date:
$47,799,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. H-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J, CLASS K, CLASS L, CLASS M, CLASS
N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class H Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class H Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class H Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3 Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class H Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class H Certificate without registration or qualification. Any
Class H Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class H
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-20-2
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class H Certificates
as of the Closing Date: $47,799,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class H Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. H-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J, CLASS K, CLASS L, CLASS M, CLASS
N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class H Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class H Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class H Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3 Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class H Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class H Certificate without registration or qualification. Any
Class H Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class H
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-21-1
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class J Certificates
as of the Closing Date:
$52,578,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class J Certificate as of the Closing Date:
$52,578,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. J-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE
CLASS H CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K, CLASS L, CLASS M,
CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class J Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class J Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class J Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class J Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class J Certificate without registration or qualification. Any
Class J Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class J
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-21-2
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class J Certificates
as of the Closing Date:
$52,578,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class J Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. J-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE
CLASS H CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K, CLASS L, CLASS M,
CLASS N, CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class J Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class J Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class J Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class J Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class J Certificate without registration or qualification. Any
Class J Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class J
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-22-1
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class K Certificates
as of the Closing Date:
$33,458,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class K Certificate as of the Closing Date:
$33,458,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. K-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q
AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class K Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class K Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class K Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class K Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class K Certificate without registration or qualification. Any
Class K Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class K
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-22-2
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class K Certificates
as of the Closing Date:
$33,458,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class K Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. K-2 CUSIP No. [_]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS L, CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q
AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class K Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class K Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class K Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class K Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class K Certificate without registration or qualification. Any
Class K Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class K
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-23-1
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class L Certificates
as of the Closing Date:
$19,120,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class L Certificate as of the Closing Date:
$19,120,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. L-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D 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 OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D 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 OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q
AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class L Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class L Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class L Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class L Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class L Certificate without registration or qualification. Any
Class L Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class L
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-23-2
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class L Certificates
as of the Closing Date:
$19,120,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class L Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. L-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D 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 OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D 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 OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS M, CLASS N, CLASS O, CLASS P, CLASS Q
AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class L Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class L Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class L Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class L Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class L Certificate without registration or qualification. Any
Class L Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class L
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-24-1
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class M Certificates
as of the Closing Date:
$9,559,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class M Certificate as of the Closing Date:
$9,559,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. M-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES AND THE
CLASS L CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES AND THE CLASS L
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS N, CLASS O, CLASS P,
CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT
REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class M Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class M Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class M Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class M Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class M Certificate without registration or qualification. Any
Class M Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class M
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-24-2
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class M Certificates
as of the Closing Date:
$9,559,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class M Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. M-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATESOF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES AND THE CLASS L
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS N, CLASS O, CLASS P,
CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT
REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE
HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class M Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class M Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class M Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class M Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class M Certificate without registration or qualification. Any
Class M Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class M
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-25-1
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class N Certificates
as of the Closing Date:
$14,340,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class N Certificate as of the Closing Date:
$14,340,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. N-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class N Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class N Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class N Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
N Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class N Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class N Certificate without registration or qualification. Any
Class N Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class N
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-25-2
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class N Certificates
as of the Closing Date:
$14,340,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class N Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. N-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS O, CLASS P, CLASS Q AND CLASS S CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class N Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class N Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class N Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
N Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class N Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class N Certificate without registration or qualification. Any
Class N Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class N
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-26-1
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class O Certificates
as of the Closing Date:
$9,559,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class O Certificate as of the Closing Date:
$9,559,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. O-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS P, CLASS Q AND CLASS S CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal amount of this Class O Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class O Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class O Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class O Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class O Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class O Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class O Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class O Certificate without registration or qualification. Any
Class O Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class O Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class O Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class O
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class O
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-26-2
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class O Certificates
as of the Closing Date:
$9,559,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class O Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. O-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS P, CLASS Q AND CLASS S CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal amount of this Class O Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class O Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class O Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class O Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class O Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class O Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class O Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class O Certificate without registration or qualification. Any
Class O Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class O Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class O Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class O
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class O
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-27-1
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class P Certificates
as of the Closing Date: $9,560,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class P Certificate as of the Closing Date:
$9,560,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. P-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES AND THE
CLASS O CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES AND THE CLASS O
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS Q AND CLASS S
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal amount of this Class P Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class P Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class P Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class P Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class P Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class P Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
P Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class P Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class P Certificate without registration or qualification. Any
Class P Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class P Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class P Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class P
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class P
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-27-2
FORM OF CLASS P CERTIFICATE
CLASS P COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class P Certificates
as of the Closing Date: $9,560,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class P Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. P-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES AND THE
CLASS O CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND
THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES AND THE CLASS O
CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE
CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS Q AND CLASS S
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the principal amount of this Class P Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class P Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class P
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class P Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class P Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class P Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class P Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
P Certificates are exchangeable for new Class P Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class P Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class P 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class P Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class P Certificate without registration or qualification. Any
Class P Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class P Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class P Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class P
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class P
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-28-1
FORM OF CLASS Q CERTIFICATE
CLASS Q COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class Q Certificates
as of the Closing Date: $9,560,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class Q Certificate as of the Closing Date:
$9,560,000
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. Q-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE
CLASS O CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class Q Certificate (obtained by dividing
the principal amount of this Class Q Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class Q Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class Q
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class Q Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class Q Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class Q Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class Q Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
Q Certificates are exchangeable for new Class Q Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Q Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Q 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class Q Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class Q Certificate without registration or qualification. Any
Class Q Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class Q Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class Q Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class Q
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Q
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-28-2
FORM OF CLASS Q CERTIFICATE
CLASS Q COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class Q Certificates
as of the Closing Date: $9,560,000
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class Q Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. Q-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE
CLASS O CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES AND THE
CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT
DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES AND THE CLASS P CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS S CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class Q Certificate (obtained by dividing
the principal amount of this Class Q Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class Q Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class Q
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class Q Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class Q Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class Q Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class Q Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
Q Certificates are exchangeable for new Class Q Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Q Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Q 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class Q Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class Q Certificate without registration or qualification. Any
Class Q Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class Q Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class Q Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class Q
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Q
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-29-1
FORM OF CLASS S CERTIFICATE
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class S Certificates
as of the Closing Date: $76,476,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class S Certificate as of the Closing Date:
$76,476,068
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. S-1 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE
CLASS O CERTIFICATES, THE CLASS P CERTIFICATES AND THE CLASS Q CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES, THE CLASS P CERTIFICATES AND THE CLASS Q CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class S Certificate (obtained by dividing
the principal amount of this Class S Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class S Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class S
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class S Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class S Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class S Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class S Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
S Certificates are exchangeable for new Class S Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class S Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class S 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class S Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class S Certificate without registration or qualification. Any
Class S Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class S Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class S Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class S
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class S
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-29-2
FORM OF CLASS S CERTIFICATE
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Class Principal Balance of the Class S Certificates
as of the Closing Date: $76,476,068
Date of Pooling and Servicing Agreement: as of June Initial Certificate Principal Balance of this
1, 2007 Class S Certificate as of the Closing Date: $0
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007
Master Servicer: Wachovia Bank, National Association Trustee: Wells Fargo Bank, N.A.
Special Servicer: CWCapital Asset Management LLC
Certificate No. S-2 CUSIP No. [_]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS
A-1A CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS A-J CERTIFICATES, THE
CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE
CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE
CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE
CLASS L CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE
CLASS O CERTIFICATES, THE CLASS P CERTIFICATES AND THE CLASS Q CERTIFICATES OF
THE SAME SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR
INTEREST TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-PB CERTIFICATES, THE CLASS A-3
CERTIFICATES, THE CLASS A-1A CERTIFICATES, THE CLASS A-J CERTIFICATES, THE CLASS
B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E
CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H
CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L
CERTIFICATES, THE CLASS M CERTIFICATES, THE CLASS N CERTIFICATES, THE CLASS O
CERTIFICATES, THE CLASS P CERTIFICATES AND THE CLASS Q CERTIFICATES OF THE SAME
SERIES AND THE CLASS A-4FL REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST
IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class S Certificate (obtained by dividing
the principal amount of this Class S Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class S Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class S
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Wachovia Commercial
Mortgage Securities, Inc. (herein called the "Depositor", which term includes
any successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), CWCapital Asset Management LLC (herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Wells Fargo Bank, N.A. (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class S Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class S Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made 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 the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
Interest accrued on this Certificate during an Interest Accrual
Period, plus any unpaid interest shortfall with respect to this Certificate for
any prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class S Certificates is
the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class S Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, the Class
S Certificates are exchangeable for new Class S Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class S Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class S 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the Initial
Purchaser or their respective affiliates), then the Certificate Registrar shall
refuse to register such transfer unless it receives either: (i) a certificate
from the Certificateholder desiring to effect such transfer substantially in the
form attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee,
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class S Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class S Certificate without registration or qualification. Any
Class S Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class S Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class S Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class S
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class S
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-30
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Agreement: June 1, 2007 Percentage Interest evidenced by this Class R-I
Certificate: 100%
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007 Trustee: Wells Fargo Bank, N.A.
Master Servicer: Wachovia Bank, National Association Special Servicer: CWCapital Asset Management LLC
Certificate No. R-I-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-PB, CLASS
A-3, CLASS A-1A, CLASS IO, CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS
P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN
THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Wachovia Bank, National Association is the
registered owner of the Percentage Interest evidenced by this Class R-I
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-I Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Wachovia Commercial Mortgage Securities, Inc. (herein called
the "Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), CWCapital Asset
Management LLC (herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Wells Fargo Bank, N.A. (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount, if any, required to be
distributed to the Holders of the Class R-I Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Class R-I Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I 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 of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Paying Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee, the Paying
Agent or the Certificate Registrar is obligated to register or qualify the Class
R-I Certificates under the Securities Act or any other securities law or to take
any action not otherwise required under the Agreement to permit the transfer of
any Class R-I Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No transfer of this Class R-I Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-I Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation, any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-I Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit G to the Agreement.
This Certificate represents the "residual interest" in REMIC I as
defined in the Agreement. Each Person who has or who acquires any Ownership
Interest in this Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized Wells Fargo Bank, N.A., as paying agent (the "Paying
Agent"), under clause (ii)(A) of such Section 5.02(d) to deliver payments to a
Person other than such Person and to have irrevocably authorized the Certificate
Registrar under clause (ii)(B) of such Section 5.02(d) to negotiate the terms of
any mandatory sale and to execute all instruments of Transfer and to do all
other things necessary in connection with any such sale. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Master Servicer, the Paying Agent and
the Certificate Registrar of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected. The proposed Transferee must also state
in the Transfer Affidavit and Agreement that (A) it has historically paid its
debts as they have come due and intends to continue to pay its debts as they
come due in the future, (B) it understands that it may incur tax liabilities
with respect to this certificate in excess of cash flows generated thereby, (C)
it intends to pay any taxes associated with holding this certificate as they
become due, (D) it will not cause income from 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 of any other person
and (E) 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. If this certificate represents a
"non-economic residual interest", as defined in Treasury Regulations Section
1.860E-1(c), 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.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Paying Agent written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-I Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee of a Residual Certificate
other than a (i) Disqualified Organization, (ii) a Plan, (iii) a Disqualified
Non-United States Person, (iv) a United States Person treated as a partnership
for federal income tax purposes, any partner of which, directly or indirectly
(except through a U.S. corporation), is (or is permitted under the related
partnership agreement to be) a Disqualified Non-United States Person, or (v) a
United States Person with respect to whom income on the Residual Certificate is
allocable to a foreign permanent establishment or fixed base, within the meaning
of an applicable income tax treaty, of such Person or any other United States
Person. A "Disqualified Organization" is any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Paying Agent or the Certificate Registrar based upon an
Opinion of Counsel (which shall not be an expense of the Paying Agent) that the
holding of an Ownership Interest in a Class R-I Certificate by such Person may
cause the Trust Fund 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 Class R-I 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.
A "Disqualified Non-United States Person" is any Non-United States
Person or agent thereof other than (i) a Non-United States Person that holds
this Certificate in connection with the conduct of a trade or business within
the United States and has furnished the transferor and the Certificate Registrar
with an effective IRS Form W-8ECI (or successor form) or (ii) a Non-United
States Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of this Certificate to it is in accordance with the requirements of
the Code and the regulations promulgated thereunder and that such transfer of
this Certificate will not be disregarded for federal income tax purposes.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States, any State thereof or the District
of Columbia unless in the case of a partnership, Treasury Regulations are
adopted that provide otherwise, an estate whose income is includable in gross
income for United States federal income tax purposes regardless of its source or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust, and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996, that are eligible to elect to be treated as United States
Persons).
No service charge will be imposed for any registration of transfer
or exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property therein. The
exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-31
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Agreement: June 1, 2007 Percentage Interest evidenced by this Class R-II
Certificate: 100%
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007 Trustee: Wells Fargo Bank, N.A.
Master Servicer: Wachovia Bank, National Association Special Servicer: CWCapital Asset Management LLC
Certificate No. R-II-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-PB, CLASS
A-3, CLASS A-1A, CLASS IO, CLASS A-J, CLASS B, CLASS C, CLASS D, CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS
P, CLASS Q AND CLASS S CERTIFICATES OF THE SAME SERIES AND THE CLASS A-4FL
REGULAR INTEREST AND THE CLASS A-MFL REGULAR INTEREST TO THE EXTENT DESCRIBED IN
THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING,
BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that Wachovia Bank, National Association is the
registered owner of the Percentage Interest evidenced by this Class R-II
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-II Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Wachovia Commercial Mortgage Securities, Inc. (herein called
the "Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), CWCapital Asset
Management LLC (herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Wells Fargo Bank, N.A. (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount, if any, required to be
distributed to the Holders of the Class R-II Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Class R-II Certificate will be made by check mailed to the
address of the Person entitled thereto, as such name and address appear in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans and REO Loans, all as
more specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of Advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such Advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II 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 of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee, the Paying Agent or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee, the Paying
Agent or the Certificate Registrar is obligated to register or qualify the Class
R-II Certificates under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
transfer of any Class R-II Certificate without registration or qualification.
Any Class R-II Certificateholder desiring to effect such a transfer shall, and
by the acceptance of its Class R-II Certificate agrees to, indemnify the
Trustee, the Certificate Registrar, the Paying Agent and the Depositor 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.
No transfer of this Class R-II Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan (including, without
limitation, any insurance company using assets in its general or separate
account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-II Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit G to the Agreement.
This Certificate represents the "residual interest" in REMIC II, as
defined in the Agreement. Each Person who has or who acquires any Ownership
Interest in this Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the provisions of Section
5.02(d) of the Agreement and, if any purported Transferee shall become a Holder
of this Certificate in violation of the provisions of such Section 5.02(d), to
have irrevocably authorized Wells Fargo Bank, N.A., as paying agent (the "Paying
Agent"), under clause (ii)(A) of such Section 5.02(d) to deliver payments to a
Person other than such Person and to have irrevocably authorized the Certificate
Registrar under clause (ii)(B) of such Section 5.02(d) to negotiate the terms of
any mandatory sale and to execute all instruments of Transfer and to do all
other things necessary in connection with any such sale. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Master Servicer, the Paying Agent and
the Certificate Registrar of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected. The proposed Transferee must also state
in the Transfer Affidavit and Agreement that (A) it has historically paid its
debts as they have come due and intends to continue to pay its debts as they
come due in the future, (B) it understands that it may incur tax liabilities
with respect to this certificate in excess of cash flows generated thereby, (C)
it intends to pay any taxes associated with holding this certificate as they
become due, (D) it will not cause income from 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 of any other person
and (E) 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. If this certificate represents a
"non-economic residual interest", as defined in Treasury Regulations Section
1.860E-1(c), 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.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Paying Agent written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused by the Transfer of any Class R-II Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-II Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee of a Residual Certificate
other than a (i) Disqualified Organization, (ii) a Plan, (iii) a Disqualified
Non-United States Person, (iv) a United States Person treated as a partnership
for federal income tax purposes, any partner of which, directly or indirectly
(except through a U.S. corporation), is (or is permitted under the related
partnership agreement to be) a Disqualified Non-United States Person, or (v) a
United States Person with respect to whom income on the Residual Certificate is
allocable to a foreign permanent establishment or fixed base, within the meaning
of an applicable income tax treaty, of such Person or any other United States
Person. A "Disqualified Organization" is any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Paying Agent or the Certificate Registrar based upon an
Opinion of Counsel (which shall not be an expense of the Paying Agent) that the
holding of an Ownership Interest in a Class R-II Certificate by such Person may
cause the Trust Fund 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 Class R-II 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.
A "Disqualified Non-United States Person" is any Non-United States
Person or agent thereof other than (i) a Non-United States Person that holds
this Certificate in connection with the conduct of a trade or business within
the United States and has furnished the transferor and the Certificate Registrar
with an effective IRS Form W-8ECI (or successor form) or (ii) a Non-United
States Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of this Certificate to it is in accordance with the requirements of
the Code and the regulations promulgated thereunder and that such transfer of
this Certificate will not be disregarded for federal income tax purposes.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States, any State thereof or the District
of Columbia unless in the case of a partnership, Treasury Regulations are
adopted that provide otherwise, an estate whose income is includable in gross
income for United States federal income tax purposes regardless of its source or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust, and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code (or, to the extent
provided in applicable Treasury regulations, certain trusts in existence on
August 20, 1996, that are eligible to elect to be treated as United States
Persons).
No service charge will be imposed for any registration of transfer
or exchange of Class R-II Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-Off Date
specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT A-32
FORM OF CLASS Z CERTIFICATE
CLASS Z COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2007-C32
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
WACHOVIA BANK COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Agreement: June 1, 2007 Percentage Interest evidenced by this Class Z
Certificate: 100%
Closing Date: June 28, 2007 Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $3,823,853,069
First Distribution Date: July 17, 2007 Trustee: Wells Fargo Bank, N.A.
Master Servicer: Wachovia Bank, National Association Special Servicer: CWCapital Asset Management LLC
Certificate No. Z-1
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF ADDITIONAL INTEREST AS SET FORTH IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN WACHOVIA
COMMERCIAL MORTGAGE SECURITIES, INC., WELLS FARGO BANK, N.A., CWCAPITAL ASSET
MANAGEMENT LLC, WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER
PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that American Capital Strategies, Ltd. is the
registered owner of the Percentage Interest evidenced by this Class Z
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class Z Certificates in the Trust Fund created pursuant to
a Pooling and Servicing Agreement, dated as specified above (the "Agreement"),
among Wachovia Commercial Mortgage Securities, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), CWCapital Asset
Management LLC (herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Wells Fargo Bank, N.A. (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the fourth Business Day following the related Determination Date (each, a
"Distribution Date"). The Determination Date is the 11th day of each month or,
if such 11th day is not a Business Day, the Business Day immediately succeeding,
commencing in July 2007 (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class Z Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class Z Certificates will be made by Wells Fargo Bank, N.A., as paying agent
(the "Paying Agent"), by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent 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 distributions), or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate will 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 the Holder hereof of such final
distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries of Additional Interest payable on the Mortgage Loans,
all as more specifically set forth herein and in the Agreement.
The Class Z Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class Z Certificates are exchangeable for new
Class Z Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
Any distribution to the Holder of this Certificate is binding on
such Holder and all future Holders of this Certificate and any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such distribution is made upon this Certificate.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Z Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Z 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or its
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit F-2, Exhibit F-3, Exhibit F-4, Exhibit F-5 or Exhibit F-6 to the
Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee, the
Paying Agent or the Certificate Registrar is obligated to register or qualify
the Class Z Certificates under the Securities Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of any Class Z Certificate without registration or qualification. Any
Class Z Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class Z Certificate agrees to, indemnify the Trustee, the
Certificate Registrar, the Paying Agent and the Depositor 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.
No service charge will be imposed for any registration of transfer
or exchange of Class Z Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class Z
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar, or any such agent shall be affected
by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Z
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-Off Date specified on the face hereof.
In addition, any exchange by any Certificateholder of all of the
then outstanding Certificates (other than the Class Z, Class R-I and Class R-II
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund may be made: (i) if the then outstanding Certificates (other than
the Class Z, Class R-I and Class R-II Certificates) are held by a single
Certificateholder and (ii) the Class A-1, Class A-2, Class A-PB, Class A-3,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest have been paid in full.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and one or more grantor trusts, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: June 28, 2007
WELLS FARGO BANK, N.A., as Certificate
Registrar
By:____________________________________
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z Certificates referred to in the
within-mentioned Agreement.
WELLS FARGO BANK, N.A., as
Authenticating Agent
By:____________________________________
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________,
the Assignee named above, or ____________________________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Mortgage Loan Number Loan Group Number Property Name
- -------------------- ----------------- --------------------------------------------------
1 1 Beacon D.C. & Seattle Pool(1)
1.01 Market Square
1.02 Polk & Taylor Buildings
1.03 Wells Fargo Center
1.04 One, Two & Three Lafayette Centre
1.05 Booz Allen Complex
1.06 Key Center
1.07 Sunset North
1.08 City Center Bellevue
1.09 Plaza Center and US Bank Tower
1.10 1616 Fort Myer Drive
1.11 American Center
1.12 Eastgate Office Park
1.13 Liberty Place
1.14 Lincoln Executive Center Buildings I, II, III, A&B
1.15 11111 Sunset Hills Road
1.16 Army and Navy Club Building
1.17 Plaza East
1.18 Reston Town Center
1.19 1300 North Seventeenth Street
1.20 Washington Mutual Tower
2 1 ING Hospitality Pool(1)
2.01 Residence Inn - La Jolla, CA
2.02 Residence Inn Seattle East - Redmond , WA
2.03 Residence Inn - Long Beach, CA
2.04 Residence Inn - Costa Mesa, CA
2.05 Residence Inn Pasadena - Arcadia, CA
2.06 Residence Inn - Irvine, CA
2.07 Homewood Suites - Herndon, VA
2.08 Residence Inn Concord - Pleasant Hill, CA
2.09 Residence Inn - San Ramon, CA
2.10 Homewood Suites - Linthicum, MD
2.11 Residence Inn - Saint Louis, MO
2.12 Residence Inn - Bakersfield, CA
2.13 Residence Inn - Boulder, CO
2.14 Residence Inn - Hapeville, GA
2.15 Residence Inn Chicago - Deerfield, IL
2.16 Homewood Suites - Malvern, PA
2.17 Residence Inn - Houston, TX
2.18 Residence Inn - Santa Fe, NM
2.19 Residence Inn - Placentia, CA
2.20 Homewood Suites - Glen Allen, VA
2.21 Residence Inn - Atlanta, GA (Buckhead)
2.22 Homewood Suites - Beaverton, OR
2.23 Residence Inn - Cincinnati, OH
2.24 Residence Inn - Lombard, IL
2.25 Residence Inn - Jacksonville, FL
2.26 Homewood Suites - Irving, TX
2.27 Residence Inn Dallas - Irving, TX
2.28 Homewood Suites - Clearwater, FL
2.29 Residence Inn - Boca Raton, FL
2.30 Residence Inn - Clearwater, FL
2.31 Residence Inn - Birmingham, AL
2.32 Residence Inn - Smyrna, GA
2.33 Homewood Suites - Addison, TX
2.34 Homewood Suites - Chesterfield, MO
2.35 Residence Inn - Montgomery, AL
2.36 Homewood Suites - Atlanta, GA (Buckhead)
2.37 Residence Inn - Chesterfield, MO
2.38 Residence Inn - Blue Ash, OH
2.39 Residence Inn - Berwyn, PA
2.40 Residence Inn - Danvers, MA
2.41 Homewood Suites - Midvale, UT
2.42 Homewood Suites - Plano, TX
2.43 Homewood Suites - Atlanta, GA (Cumberland)
2.44 Residence Inn - Memphis, TN
2.45 Residence Inn - Atlanta, GA (DeKalb)
2.46 Homewood Suites - Norcross, GA
3 1 DDR Southeast Pool(1)(2)
3.01 Hilltop Plaza
3.02 Largo Town Center
3.03 Midway Plaza
3.04 Riverstone Plaza
3.05 Highland Grove
3.06 Riverdale Shops
3.07 Skyview Plaza
3.08 Apple Blossom Corners
3.09 Fayetteville Pavilion
3.10 Creekwood Crossing
3.11 Flamingo Falls
3.12 Harundale Plaza
3.13 Meadowmont Village Center
3.14 Springfield Commons
3.15 Northlake Commons
3.16 Village Square at Golf
3.17 Oviedo Park Crossing
3.18 Shoppes of Golden Acres
3.19 Bardmoor Shopping Center
3.20 Rosedale Shopping Center
3.21 Casselberry Commons
3.22 Shoppes at New Tampa
3.23 Crossroads Plaza
3.24 Plaza Del Paraiso
3.25 North Pointe Plaza
3.26 Melbourne Shopping Center
3.27 Market Square (DDR)
3.28 Shoppes of Lithia
3.29 West Oaks Towne Center
3.30 Sharon Greens
3.31 Lakewood Ranch
3.32 Cofer Crossing
3.33 Clayton Corners
3.34 Clearwater Crossing
3.35 Shops at Paradise Pointe
3.36 Killearn Center
3.37 Conway Plaza
3.38 River Run Shopping Center
3.39 Aberdeen Square
3.40 Derby Square
3.41 Chickasaw Trails Shopping Center
3.42 Shoppes at Lake Dow
3.43 Shoppes of Ellenwood
3.44 Shops at Oliver's Crossing
3.45 Southwood Village Shopping Center
3.46 Paraiso Plaza
3.47 Sheridan Sqaure
3.48 Countryside Shopping Center
3.49 Shoppes of Citrus Hills
3.50 Crystal Springs Shopping Center
3.51 Sexton Commons
3.52 Hairston Crossing
4 1 Two Herald Square
5 1 Westin Casuarina Resort & Spa - Cayman Islands
6 1 DDR-TRT Pool
6.01 Centerton Square
6.02 Beaver Creek Commons
6.03 Mount Nebo Pointe
7 1 Ashford Hospitality Pool 4
7.01 Spring Hill Suites - Orlando, FL
7.02 Courtyard - Orlando, FL
7.03 Residence Inn - Atlanta, GA
7.04 Fairfield Inn - Orlando, FL
7.05 Courtyard by Marriott - Edison, NJ
8 1 17 Battery Place South
9 1 Rockvale Square
10 1 Centerside II
11 1 Citadel Mall
12 1 Port Chester Shopping Center
13 1 60 Madison Avenue
14 1 3600 Wilshire Boulevard
15 1 La Jolla Centre I
16 1 450-460 Park Avenue South
17 1 Stadium Crossings
18 1 La Jolla Centre II
19 1 Roosevelt Square
20 1 Marriott - Mobile, AL(4)
21 2 Little Rock Pool(5)
21.01 Chenal Lakes Apartments
21.02 Brightwaters Apartments
22 1 Jamison Valley Holdings Pool
22.01 Sherman Oaks Atrium
22.02 West Hills Plaza
23 1 Portofino Inn & Suites - Anaheim, CA
24 1 Barrington Business Center
25 2 Mountain Shadow Apartments(6)
26 1 Courtyard by Marriott - Philadelphia, PA
27 2 Town Center Apartments(7)
28 2 The Gates at Citiplace Apartments
29 Reserved(8)
30 2 Environs Residential Rental Community
31 2 Summit Trails Apartments(9)
32 1 Wellington Market Place
33 1 Sheraton West - Richmond, VA(10)
34 1 Franklin Square III
35 1 Siena Office Park(11)(12)
36 1 Columbus Park Crossing Shopping Center
37 1 Vestal Park
38 2 Amber Place
39 1 Wyndham - Atlanta, GA
40 1 141 5th Avenue
41 1 Marietta Trade Center
42 1 Majestic Square
43 1 138 Spring Street
44 1 72 Madison Avenue
45 2 The Centre Apartments
46 1 Pompano Plaza
47 1 Wildwood North Shopping Center
48 1 Federal Law Center
49 2 Estancia Apartments
50 1 Colonial Promenade Bear Lake
51 1 Mercury Computer
52 2 Villa del Oso
53 1 Mount Pleasant Square
54 1 65 West 36th Street
55 1 Lazy Days Marina
56 1 Athens West
57 1 Peachtree Medical Office Pool
57.01 Yorktown Medical Center
57.02 Shakerag Medical Center
58 1 BPRE Pool
58.01 11820 Pierce Street
58.02 8131 East Indian Bend Road
58.03 8111 East Indian Bend Road
58.04 8115 East Indian Bend Road
58.05 7328 East Stetson Drive
59 2 Porto Bella(13)
60 1 Shoppes at Woodhill
61 2 Le Coeur du Monde Apartments
62 1 Barrington Terrace
63 1 Sunset Commons
64 1 XSport Fitness - Downers Grove, IL
65 1 Topsham Crossing Center
66 2 Chartwell Court Apartments
67 1 Cupertino Town Center
68 1 One Front Street
69 2 Pine Winds Apartments
70 2 The Arbors at Port Warwick
71 1 Michael's Warehouse & Distribution Facility
72 1 Parmer-McNeil Plaza Shopping Center
73 1 159-181 Second Avenue
74 1 Midtown Square(14)
75 2 Vista Montana
76 1 1500 West Park Drive
77 2 Colony Grove Apartments
78 1 Glenwood Plaza
79 1 Mayfaire Towne Center
80 2 Deerwood Crossing Apartments(15)
81 1 English Village
82 1 The Village at Heather Ridge Pool
82.01 Heather Ridge Bank Building
82.02 Heather Ridge Office Building
83 2 Sunnygate Village Apartments
84 1 Coddle Creek Shopping Center
85 1 Commons V Medical Office
86 1 Plaza 57
87 1 8300 East Raintree Drive
88 1 Bella Piazza
89 1 17000 Ventura Boulevard
90 1 Willimantic Plaza
91 2 Imperial Towers Apartments
92 1 Cardiff Plaza Shopping Center
93 1 Medical Office Building
94 1 Bath Shopping Center
95 2 7400 Apartments
96 2 Dutch Village Apartments(16)
97 1 Hampton Inn - Bennington, VT(17)
98 1 Lantern Bend Medical
99 2 Fountain Park Apartments
100 1 Bunge North America
101 1 Shoppes at Pennington(18)
102 1 Columbia Summit
103 1 Galleria Shopping Center
104 1 Sunset Ridge Center
105 1 Barchester Pool(19)
105.01 Mansion House Center Ground Lease
105.02 Pinewood Estates Apartments Ground Lease
105.03 Winrock Villas Condominiums Ground Lease
105.04 National City Bank Building Ground Lease
105.05 Albuquerque Plaza Ground Lease
106 1 Shoppes at Indian Trail
107 1 Summerlin Office Building
108 2 Village Square Apartments
109 1 The Timmons Place Office Building
110 1 1331 Gemini Building
111 1 Village Pavilion
112 2 The Apartments at 1515 West Morse Avenue
113 2 5724-32 South Blackstone Avenue
114 2 Stanford Place II Apartments
115 1 Rockbridge Place
116 1 Schertz Retail Center
117 1 Holiday Inn Express - Heber City , UT
118 1 Shops at East-West Connector
119 1 The Timmons Square Office Building
120 2 Clearwater Estates III and IV
121 1 North Tucker Garage
122 1 SilverLeaf Suites - Eagle, CO(20)
123 1 Warehouse Terminal - Manitowac, WI
124 1 701 Interstate 20 East
125 1 Ridge Road Shopping Center
126 1 OfficeMax - Eden Prairie, MN
127 2 4717 North Winthrop Apartments
128 1 Pay Low - Gary, IN
129 1 Wiseway
130 1 Walgreens - Ozark, MO
131 1 Warehouse Terminal - Menominee, MI
132 1 Raintree Building
133 1 Tractor Supply - Rutland, VT
134 1 Tractor Supply - Watertown, WI
135 1 Archives One - Malvern, PA
136 1 Village Square
137 1 Baseline Industrial Buildings
138 1 Ocean Rose Inn - Narragansett, RI(21)
139 1 Archives One - Greensboro, NC
140 1 IHOP - Pearland, TX
141 1 National Tire & Battery at Greens Landing
142 1 Archives One - Essex Junction, VT
143 1 Comerica Bank at Preston Center
Mortgage Loan Number Address City State
- -------------------- ------------------------------------------------------------------- ------------------ --------------
1 Various Various Various
1.01 701, 801 Pennsylvania Avenue NW Washington DC
1.02 2521 S Clark Street & 2530 Crystal Drive Arlington VA
1.03 999 Third Avenue Seattle WA
1.04 1120 20th Street NW; 1155 21st Street NW; 1133 21st Street NW Washington DC
1.05 8251 Greensboro Drive; 8281 Greensboro Drive; 8283 Greensboro Drive Mc Lean VA
1.06 601 108th Avenue NE Bellevue WA
1.07 3060-3180, 139th Avenue SE Bellevue WA
1.08 500 108th Avenue NE Bellevue WA
1.09 10800 and 10900 NE 8th Street Bellevue WA
1.10 1616 Fort Myer Drive Arlington VA
1.11 8300 & 8330 Boone Boulevard Vienna VA
1.12 15325 SE 30th Place Bellevue WA
1.13 325 7th Street NW Washington DC
1.14 3380 146th Place Southeast, Bellevue WA
14332 Southeast Eastgate Way, 3245 146th Place Southeast;
3290 and 3310 146th Place Southeast
1.15 11111 Sunset Hills Road Reston VA
1.16 1627 I Street NW Washington DC
1.17 11100 NE 8th Street Bellevue WA
1.18 11911 Freedom Drive Reston VA
1.19 1300 North 17th Street Arlington VA
1.20 1201 Third Avenue Seattle WA
2 Various Various Various
2.01 8901 Gilman Drive La Jolla CA
2.02 7575 164th Avenue NE Redmond WA
2.03 4111 East Willow Street Long Beach CA
2.04 881 West Baker Street Costa Mesa CA
2.05 321 East Huntington Drive Arcadia CA
2.06 10 Morgan Street Irvine CA
2.07 13460 Sunrise Valley Drive Herndon VA
2.08 700 Ellinwood Way Pleasant Hill CA
2.09 1071 Market Place San Ramon CA
2.10 1181 Winterson Road Linthicum MD
2.11 1100 McMorrow Avenue Saint Louis MO
2.12 4241 Chester Lane Bakersfield CA
2.13 3030 Center Green Drive Boulder CO
2.14 3401 International Boulevard Hapeville GA
2.15 530 Lake Cook Road Deerfield IL
2.16 12 East Swedesford Road Malvern PA
2.17 525 Bay Area Boulevard Houston TX
2.18 1698 Galisteo Street Santa Fe NM
2.19 700 West Kimberly Avenue Placentia CA
2.20 4100 Innslake Drive Glen Allen VA
2.21 2960 Piedmont Road NE Atlanta GA
2.22 15525 NW Gateway Court Beaverton OR
2.23 11689 Chester Road Cincinnati OH
2.24 2001 South Highland Avenue Lombard IL
2.25 8365 Dix Ellis Trail Jacksonville FL
2.26 4300 Wingren Drive Irving TX
2.27 950 Walnut Hill Lane Irving TX
2.28 2233 Ulmerton Road Clearwater FL
2.29 525 NW 77th Street Boca Raton FL
2.30 5050 Ulmerton Road Clearwater FL
2.31 3 Greenhill Parkway Birmingham AL
2.32 2771 Cumberland Boulevard Smyrna GA
2.33 4451 Beltline Road Addison TX
2.34 840 Chesterfield Parkway Chesterfield MO
2.35 1200 Hilmar Court Montgomery AL
2.36 3566 Piedmont Road Atlanta GA
2.37 15431 Conway Road Chesterfield MO
2.38 11401 Reed Hartman Highway Blue Ash OH
2.39 600 West Swedesford Road Berwyn PA
2.40 51 Newbury Street Danvers MA
2.41 844 East Fort Union Midvale UT
2.42 4705 Old Shepard Place Plano TX
2.43 3200 Cobb Parkway Atlanta GA
2.44 6141 Old Poplar Pike Memphis TN
2.45 1901 Savoy Drive Atlanta GA
2.46 450 Technology Parkway Norcross GA
3 Various Various Various
3.01 3200-4200 Klose Way, 3401 Blume Drive Richmond CA
3.02 950 Largo Center Drive Largo MD
3.03 5725 North University Drive Tamarac FL
3.04 1351-1455 Riverstone Parkway Canton GA
3.05 10451 Indianapolis Boulevard Highland IN
3.06 935 Riverdale Street West Springfield MA
3.07 7801 South Orange Blossom Trail Orlando FL
3.08 2190 South Pleasant Valley Road Winchester VA
3.09 2047 - 2071 Skibo Road Fayetteville NC
3.10 7327 52nd Place East Bradenton FL
3.11 2000 Flamingo Road Pembroke Pines FL
3.12 7740 Ritchie Highway Glen Burnie MD
3.13 603 Meadowmont Village Drive Chapel Hill NC
3.14 Airport Highway South Holland Sylvania Road Toledo OH
3.15 3804-3980 Northlake Boulevard Palm Beach Gardens FL
3.16 4707-4793 North Congress Avenue Boynton Beach FL
3.17 1115 Vidina Place Oviedo FL
3.18 9840 Little Road New Port Richey FL
3.19 10801 Starkey Road Largo FL
3.20 9943 Gilead Road Huntersville NC
3.21 1455 South Semoran Boulevard Casselberry FL
3.22 1950 Bruce B. Downs Boulevard Wesley Chapel FL
3.23 Route 38 Lumberton NJ
3.24 127th Avenue and 120th Street Miami FL
3.25 15001 North Dale Mabry Highway Tampa FL
3.26 1301 - 1441 South Babcock Street Melbourne FL
3.27 9559 Highway 5 Douglasville GA
3.28 3245 Lithia-Pinecrest Road Valrico FL
3.29 9557 West Colonial Drive Ocoee FL
3.30 1595 Peachtree Parkway Cumming GA
3.31 1715-1795 Lakewood Ranch Boulevard Bradenton FL
3.32 4349-4357 Lawrenceville Highway Tucker GA
3.33 11721 U.S. Highway 17 West Clayton NC
3.34 7380 Spout Springs Road Flowery Branch GA
3.35 247 Miracle Strip Parkway Fort Walton Beach FL
3.36 3483 Thomasville Road Tallahassee FL
3.37 4400 Curry Ford Road Orlando FL
3.38 9981 Miramar Parkway Miramar FL
3.39 4966 Le Chalet Boulevard Boynton Beach FL
3.40 2165-2233 Stringtown Road Grove City OH
3.41 2160 Chickasaw Trail Orlando FL
3.42 920 Highway 91 East McDonough GA
3.43 2828-2844 East Atlanta Road Ellenwood GA
3.44 5034 Peters Creek Parkway Winston Salem NC
3.45 3551 Blair Stone Road Tallahassee FL
3.46 3301 West 80th Street Hialeah FL
3.47 401 East Sheridan Street Dania FL
3.48 4025 Santa Barbara Boulevard Naples FL
3.49 2699 North Forest Ridge Boulevard Hernando FL
3.50 6738-6784 West Gulf to Lake Highway Crystal River FL
3.51 1416 North Main Street Fuquay Varina NC
3.52 2071-2079 South Hairston Road Decatur GA
4 1328 Broadway New York NY
5 30620 Seven Mile Beach George Town Cayman Islands
6 Various Various Various
6.01 I-295 and Route NJ 38 Mount Laurel NJ
6.02 1045 Beaver Creek Commons Drive Apex NC
6.03 228 Mount Nebo Road Ohio Township PA
7 Various Various Various
7.01 8601 Vineland Avenue Orlando FL
7.02 8623 Vineland Avenue Orlando FL
7.03 2220 Lake Boulevard Atlanta GA
7.04 8615 Vineland Avenue Orlando FL
7.05 3105 Woodbridge Avenue Edison NJ
8 17 Battery Place South New York NY
9 35 South Willowdale Drive Lancaster PA
10 3131 Camino del Rio North San Diego CA
11 2070 Sam Rittenburg Boulevard Charleston SC
12 421-575 Boston Post Road - U.S. Route 1 Port Chester NY
13 60 Madison Avenue New York NY
14 3600 Wilshire Boulevard Los Angeles CA
15 4660 La Jolla Village Drive San Diego CA
16 450-460 Park Avenue South New York NY
17 2125 East Katella Avenue Anaheim CA
18 9255 Towne Centre Drive San Diego CA
19 4535 Roosevelt Boulevard Jacksonville FL
20 3101 Airport Boulevard Mobile AL
21 Various Little Rock AR
21.01 13500 Chenal Parkway Little Rock AR
21.02 2420 Riverfront Drive Little Rock AR
22 Various Various CA
22.01 15315 Magnolia Boulevard Sherman Oaks CA
22.02 20700 Ventura Boulevard Woodland Hills CA
23 1831 South Harbor Boulevard Anaheim CA
24 1 Commerce Drive Barrington NJ
25 695 East Patriot Boulevard Reno NV
26 21 North Juniper Street Philadelphia PA
27 2727 Bens Branch Drive Kingwood TX
28 2500 Gates Circle Baton Rouge LA
29
30 3323 West 96th Circle Westminster CO
31 1350 Grand Summit Drive Reno NV
32 13833-13897 Wellington Trace Wellington FL
33 6624 West Broad Street Richmond VA
34 3648-3740 East Franklin Boulevard Gastonia NC
35 2850 West Horizon Ridge Parkway & 861 Coronado Center Drive Henderson NV
36 5550 Whittlesey Boulevard Columbus GA
37 4700 Vestal Parkway Vestal NY
38 6080 Lakeview Road Warner Robins GA
39 125 10th Street NE Atlanta GA
40 141 5th Avenue New York NY
41 200 Cobb Parkway Marietta GA
42 211 King Street Charleston SC
43 138 Spring Street New York NY
44 72 Madison Avenue New York NY
45 5200 Croyden Avenue Kalamazoo MI
46 1401-1405 South Federal Highway; 947-951 SE 15th Street Pompano Beach FL
47 146 Wildwood Parkway Birmingham AL
48 101 South Edgeworth Street Greensboro NC
49 1720 East D Street Ontario CA
50 3010-3060 East Semoran Boulevard Apopka FL
51 199 & 201 Riverneck Road Chelmsford MA
52 4217 Louisiana Boulevard NE Albuquerque NM
53 1440 Ben Sawyer Boulevard Mount Pleasant SC
54 65 West 36th Street New York NY
55 6700 Holiday Road Buford GA
56 3190 Atlanta Highway Athens GA
57 Various Various GA
57.01 101 Yorktown Drive Fayetteville GA
57.02 4000 Shakerag Hill Peachtree City GA
58 Various Various Various
58.01 11820 Pierce Street Riverside CA
58.02 8131 East Indian Bend Road Scottsdale AZ
58.03 8111 East Indian Bend Road Scottsdale AZ
58.04 8115 East Indian Bend Road Scottsdale AZ
58.05 7328 East Stetson Drive Scottsdale AZ
59 10853 Firestone Boulevard Norwalk CA
60 6090 Garners Ferry Road Columbia SC
61 2035 Clermont Crossing Drive Saint Louis MO
62 1425 South Congress Avenue Boynton Beach FL
63 925 Seaside Road SW Ocean Isle Beach NC
64 3200 Finley Road Downers Grove IL
65 129-131 Topsham Fair Mall Road Topsham ME
66 15100 Ella Boulevard Houston TX
67 20380,20370,20410 Town Center Lane Cupertino CA
68 251 East Front Street Boise ID
69 1301 Pine Winds Drive Garner NC
70 1100 William Styron Square South Newport News VA
71 9200 West Beaver Street Jacksonville FL
72 6201-6315 North Parmer Lane Austin TX
73 159-181 Second Avenue San Mateo CA
74 112-116 10th Street Atlanta GA
75 8000 Montgomery Boulevard NE Albuquerque NM
76 1500 West Park Drive Westborough MA
77 1145 West Baseline Road Tempe AZ
78 3605 Glenwood Avenue Raleigh NC
79 1060 International Drive Wilmington NC
80 1710 Franciscan Terrace Winston-Salem NC
81 2812 Spring Avenue Decatur AL
82 Various Sioux Falls SD
82.01 6100 South Old Village Place Sioux Falls SD
82.02 6300 South Old Village Place Sioux Falls SD
83 10120 Woodbury Drive Manassas VA
84 358 George Liles Parkway Concord NC
85 800 Goodlette Road Naples FL
86 7301 SW 57th Court Miami FL
87 8300 East Raintree Drive Scottsdale AZ
88 40230 & 40250 Murrieta Hot Springs Road Murrieta CA
89 17000 Ventura Boulevard Los Angeles CA
90 1601 West Main Street Willimantic CT
91 3801 Conshohocken Avenue Philadelphia PA
92 6701 Black Horse Pike Egg Harbor NJ
93 50 Sewall Street Portland ME
94 1-5 Chandler Road (US Route 1) Bath ME
95 7400 Roosevelt Boulevard Philadelphia PA
96 1500 Zuider Zee Drive Winston-Salem NC
97 51 Hannaford Square Bennington VT
98 411 Lantern Bend Drive Houston TX
99 12525 South Kirkwood Road Stafford TX
100 6700 Snowden Road Fort Worth TX
101 21 Route 31 North Pennington NJ
102 731 North Columbia Center Boulevard Kennewick WA
103 100 Route 9 North Manalapan NJ
104 7020, 7040 & 7060 West Sunset Road Las Vegas NV
105 Various Various Various
105.01 300 North 4th Street Saint Louis MO
105.02 1401 Pennsylvania Street, NE Albuquerque NM
105.03 1601 Pennsylvania Street, NE Albuquerque NM
105.04 110 West Berry Street Fort Wayne IN
105.05 201 Third Streest N.W. Albuquerque NM
106 14045 U.S. Highway 74 Indian Trail NC
107 9500 Hillwood Drive Las Vegas NV
108 100 Tonto Trail Lafayette IN
109 3701 West Alabama Street Houston TX
110 1331 Gemini Avenue Houston TX
111 300 Village Green Circle Smyrna GA
112 1515 West Morse Avenue Chicago IL
113 5724-32 South Blackstone Avenue Chicago IL
114 37 Van Mark Way Saint Louis MO
115 5723 Rockbridge Road Stone Mountain GA
116 6000 & 6018 FM 3009 Schertz TX
117 1268 South Main Street Heber City UT
118 4425 South Cobb Drive Smyrna GA
119 3637 West Alabama Street Houston TX
120 6887 and 6889 Clearwater Road Baxter MN
121 310 North Tucker Boulevard Saint Louis MO
122 315 Chambers Avenue Eagle CO
123 1946 South 23rd Street Manitowoc WI
124 701 Interstate 20 East Arlington TX
125 1107-1125A Ridge Road Rockwall TX
126 8595 Columbine Road Eden Prairie MN
127 4717 North Winthrop Avenue Chicago IL
128 6010 West Ridge Road Gary IN
129 999 West Old Ridge Road Hobart IN
130 1675 West South Street Ozark MO
131 5311 & 5611 13th Street Menominee MI
132 8150 East Raintree Road Scottsdale AZ
133 1177 US Route 7 South Rutland VT
134 1911 Market Way Watertown WI
135 6 Lee Boulevard Malvern PA
136 4025 9th Avenue South Fargo ND
137 416-418 East Baseline Road Mesa AZ
138 113 Ocean Road Narragansett RI
139 2729 Patterson Street Greensboro NC
140 2829 East Broadway Street Pearland TX
141 11017 North Freeway Houston TX
142 3 Bushey Lane Essex Junction VT
143 6033 Berkshire Lane Dallas TX
Mortgage Loan Number Zip Code County Cut-Off Date Loan Balance ($) Monthly P&I Payments ($)
- -------------------- -------- -------------------- ----------------------------- ------------------------
1 Various Various 414,000,000.00 IO
1.01 20004 District Of Columbia
1.02 22202 Arlington
1.03 98104 King
1.04 20036 District of Columbia
1.05 22102 Fairfax
1.06 98004 King
1.07 98005 King
1.08 98004 King
1.09 98004 King
1.10 22209 Arlington
1.11 22182 Fairfax
1.12 98007 King
1.13 20004 District Of Columbia
1.14 98007 King
1.15 20190 fairfax
1.16 20006 District Of Columbia
1.17 98004 King
1.18 20190 Fairfax
1.19 22209 Arlington
1.20 98101 King
2 Various Various 283,850,000.00 IO
2.01 92037 San Diego
2.02 98052 King
2.03 90815 Los Angeles
2.04 92626 Orange
2.05 91006 Los Angeles
2.06 92618 Orange
2.07 20171 Fairfax
2.08 94523 Contra Costa
2.09 94583 Contra Costa
2.10 21090 Anne Arundel
2.11 63117 Saint Louis
2.12 93309 Kern
2.13 80301 Boulder
2.14 30354 Fulton
2.15 60015 Lake
2.16 19355 Chester
2.17 77058 Harris
2.18 87505 Santa Fe
2.19 92870 Orange
2.20 23060 Henrico
2.21 30305 Fulton
2.22 97006 Washington
2.23 45246 Hamilton
2.24 60148 Du Page
2.25 32256 Duval
2.26 75093 Dallas
2.27 75038 Dallas
2.28 33762 Pinellas
2.29 33487 Broward
2.30 33760 Pinellas
2.31 35242 Jefferson
2.32 30080 Cobb
2.33 75001 Dallas
2.34 63017 Saint Louis
2.35 36117 Montgomery
2.36 30305 Fulton
2.37 63017 Saint Louis
2.38 45241 Hamilton
2.39 19312 Chester
2.40 01923 Essex
2.41 84047 Salt Lake
2.42 75093 Collin
2.43 30339 Cobb
2.44 38119 Shelby
2.45 30341 DeKalb
2.46 30092 Gwinnett
3 Various Various 221,250,000.00 IO
3.01 94806 Contra Costa
3.02 20774 Prince George's
3.03 33321 Broward
3.04 30114 Cherokee
3.05 46322 Lake
3.06 01089 Hampden
3.07 32809 Orange
3.08 22601 Frederick
3.09 28314 Cumberland
3.10 34203 Manatee
3.11 33028 Broward
3.12 21061 Anne Arundel
3.13 27517 Orange County
3.14 43528 Lucas
3.15 33403 Palm Beach
3.16 33437 Palm Beach
3.17 32756 Seminole
3.18 34654 Pasco
3.19 33777 Pinellas
3.20 28078 Mecklenburg
3.21 32707 Seminole
3.22 33543 Pasco
3.23 8048 Burlington
3.24 33186 Miami-Dade
3.25 33618 Hillsborough
3.26 32901 Brevard
3.27 30135 Douglas
3.28 33594 Hillsborough
3.29 34761 Orange
3.30 30041 Forsyth County
3.31 34211 Manatee
3.32 30084 DeKalb
3.33 27520 Johnston
3.34 30542 Hall
3.35 32548 Okaloosa
3.36 32309 Leon
3.37 32812 Orange
3.38 33025 Broward
3.39 33436 Palm Beach
3.40 43123 Franklin
3.41 32825 Orange
3.42 30252 Henry
3.43 30294 Henry
3.44 27127 Forsyth
3.45 32311 Leon
3.46 33018 Miami-Dade
3.47 33004 Broward
3.48 34104 Collier
3.49 34442 Citrus
3.50 34429 Citrus
3.51 27526 Wake
3.52 30035 DeKalb
4 10001 New York 200,000,000.00 IO
5 NA NA 140,000,000.00 873,875.74
6 Various Various 110,000,000.00 IO
6.01 8054 Burlington
6.02 27502 Wake
6.03 15237 Allegheny
7 Various Various 103,906,000.00 619,788.26
7.01 32821 Orange
7.02 32821 Orange
7.03 30319 DeKalb
7.04 32821 Orange
7.05 08837 Middlesex
8 10004 New York 95,000,000.00 IO
9 17602 Lancaster 92,400,000.00 IO
10 92108 San Diego 89,300,000.00 IO
11 29407 Charleston 75,040,499.75 435,508.49
12 10573 Westchester 70,000,000.00 IO
13 10010 New York 66,500,000.00 IO
14 90010 Los Angeles 64,000,000.00 IO
15 92122 San Diego 60,000,000.00 IO
16 10016 New York 54,000,000.00 IO
17 92806 Orange 47,000,000.00 IO
18 92121 San Diego 46,000,000.00 IO
19 32210 Duval 46,000,000.00 IO
20 36606 Mobile 44,000,000.00 260,698.58
21 Various Pulaski 40,000,000.00 IO
21.01 72211 Pulaski
21.02 72202 Pulaski
22 Various Los Angeles 38,000,000.00 IO
22.01 91403 Los Angeles
22.02 91364 Los Angeles
23 92802 Orange 36,750,000.00 IO
24 8007 Camden 36,100,000.00 IO
25 89511 Washoe 35,572,500.00 IO
26 19107 Philadelphia 35,000,000.00 207,754.57
27 77339 Harris 34,000,000.00 IO
28 70809 East Baton Rouge 33,700,000.00 IO
29
30 80031 Adams 31,000,000.00 IO
31 89523 Washoe 30,175,000.00 IO
32 33414 Palm Beach 30,000,000.00 IO
33 23230 Henrico 29,500,000.00 177,816.82
34 28054 Gaston 29,400,000.00 IO
35 89052 Clark 28,620,000.00 IO
36 31909 Muscogee 28,000,000.00 IO
37 13850 Broome 27,000,000.00 156,366.08
38 31088 Houston 26,000,000.00 IO
39 30309 Fulton 26,000,000.00 IO
40 10010 New York 25,000,000.00 IO
41 30060 Cobb 25,000,000.00 IO
42 29401 Charleston 23,850,000.00 IO
43 10012 New York 23,500,000.00 IO
44 10016 New York 22,000,000.00 IO
45 49009 Kalamazoo 19,875,000.00 IO
46 33062 Broward 18,850,000.00 IO
47 35209 Jefferson 18,700,000.00 IO
48 27401 Guilford 17,800,000.00 IO
49 91764 San Bernardino 17,650,000.00 IO
50 32703 Seminole 16,720,000.00 96,704.16
51 01824 Middlesex 16,200,000.00 IO
52 87109 Bernalillo 16,180,000.00 IO
53 29464 Charleston 15,500,000.00 IO
54 10018 New York 14,750,000.00 IO
55 30518 Hall 14,000,000.00 89,227.37
56 30606 Clarke 13,760,000.00 IO
57 Various Fayette 13,530,000.00 76,991.72
57.01 30214 Fayette
57.02 30269 Fayette
58 Various Various 13,200,000.00 IO
58.01 92505 Riverside
58.02 85250 Maricopa
58.03 85250 Maricopa
58.04 85250 Maricopa
58.05 85251 Maricopa
59 90650 Los Angeles 13,200,000.00 IO
60 29209 Richland 13,100,000.00 IO
61 63146 Saint Louis 13,056,000.00 IO
62 33426 Palm Beach 13,000,000.00 78,192.48
63 28469 Brunswick 12,988,766.20 76,609.36
64 60515 DuPage 12,936,479.47 92,962.20
65 04086 Sagadahoc 12,720,000.00 74,068.94
66 77090 Harris 12,450,000.00 68,210.57
67 95014 Santa Clara 12,400,000.00 IO
68 83702 Ada 11,800,000.00 IO
69 27603 Wake 11,600,000.00 IO
70 23606 Newport News City 11,278,294.07 66,159.24
71 32220 Duval 11,200,000.00 64,650.41
72 78729 Travis 11,050,000.00 IO
73 94401 San Mateo 11,000,000.00 IO
74 30309 Fulton 11,000,000.00 IO
75 87109 Bernalillo 10,820,000.00 IO
76 01581 Worcester 10,800,000.00 IO
77 85283 Maricopa 10,700,000.00 IO
78 27612 Wake 10,550,000.00 IO
79 28405 New Hanover 10,490,379.23 60,344.52
80 27127 Forsyth 10,400,000.00 60,493.52
81 35603 Morgan 10,400,000.00 IO
82 57108 Lincoln 10,400,000.00 62,889.17
82.01 57108 Lincoln
82.02 57108 Lincoln
83 20109 Prince William 10,250,000.00 59,037.14
84 28027 Cabarrus 10,050,000.00 IO
85 34102 Collier 10,000,000.00 57,030.12
86 33143 Miami-Dade 9,250,000.00 52,061.02
87 85254 Maricopa 9,200,000.00 IO
88 92563 Riverside 9,000,000.00 IO
89 91316 Los Angeles 8,800,000.00 IO
90 06226 Windham 8,800,000.00 IO
91 19131 Philadelphia 8,080,000.00 IO
92 8234 Atlantic 8,000,000.00 47,763.64
93 04101 Cumberland 8,000,000.00 46,249.69
94 04530 Sagadahoc 7,920,000.00 IO
95 19152 Philadelphia 7,400,000.00 IO
96 27127 Forsyth 7,100,000.00 41,298.46
97 05201 Bennington 6,994,334.74 42,374.43
98 77090 Harris 6,728,000.00 39,992.37
99 77477 Fort Bend 6,700,000.00 39,014.30
100 76140 Tarrant 6,262,000.00 IO
101 08534 Mercer 6,100,000.00 36,298.51
102 99336 Benton 6,000,000.00 35,128.80
103 07726 Monmouth 6,000,000.00 35,745.75
104 89113 Clark 6,000,000.00 IO
105 Various Various 5,900,000.00 35,297.65
105.01 63102 Saint Louis City
105.02 87110 Bernalillo
105.03 87110 Bernalillo
105.04 46802 Allen
105.05 87102 Bernalillo
106 28079 Union 5,650,000.00 33,151.55
107 89134 Clark 5,600,000.00 34,261.93
108 47905 Tippecanoe 5,560,000.00 IO
109 77027 Harris 5,350,000.00 IO
110 77058 Harris 5,250,000.00 IO
111 30080 Cobb 5,000,000.00 IO
112 60626 Cook 4,700,000.00 IO
113 60637 Cook 4,600,000.00 IO
114 63144 Saint Louis 4,350,000.00 IO
115 30087 Dekalb 4,300,000.00 IO
116 78154 Guadalupe 4,250,000.00 24,693.96
117 84032 Wasatch 4,200,000.00 25,343.37
118 30080 Cobb 4,140,000.00 24,212.54
119 77027 Harris 3,850,000.00 IO
120 56425 Crow Wing 3,700,000.00 22,326.30
121 63101 Saint Louis City 3,500,000.00 20,514.07
122 81613 Eagle 3,500,000.00 22,465.05
123 54220 Manitowoc 3,478,302.16 25,054.90
124 76014 Tarrant 3,412,500.00 20,218.95
125 75087 Rockwall 3,400,000.00 IO
126 55344 Hennepin 3,197,148.39 18,613.39
127 60640 Cook 3,100,000.00 IO
128 46408 Lake 2,747,708.68 16,452.30
129 46342 Lake 2,747,708.68 16,452.30
130 65721 Christian 2,399,000.00 IO
131 49858 Menominee 2,385,121.48 17,180.50
132 85260 Maricopa 2,100,000.00 12,957.39
133 5701 Rutland 2,095,000.00 IO
134 53094 Jefferson 1,994,000.00 IO
135 19355 Chester 1,856,543.66 11,068.07
136 58103 Cass 1,750,000.00 10,820.62
137 85204 Maricopa 1,700,000.00 10,489.32
138 02882 Washington 1,571,000.00 9,439.15
139 27407 Guilford 1,117,872.17 6,593.05
140 77581 Brazoria 1,100,000.00 6,517.46
141 77038 Harris 1,100,000.00 IO
142 5452 Chittenden 1,097,910.17 6,475.31
143 75225 Dallas 1,000,000.00 5,854.80
Mortgage Loan Number Grace Days Mortgage Rate (%) Number of Units Unit of Measure
- -------------------- --------------------------------------------------- ----------------- --------------- ---------------
1 5.7970% 9,848,341 Sq. Ft.
1.01 678,348 Sq. Ft.
1.02 904,226 Sq. Ft.
1.03 944,141 Sq. Ft.
1.04 711,495 Sq. Ft.
1.05 731,234 Sq. Ft.
1.06 473,988 Sq. Ft.
1.07 463,182 Sq. Ft.
1.08 465,765 Sq. Ft.
1.09 466,948 Sq. Ft.
1.10 294,521 Sq. Ft.
1.11 329,695 Sq. Ft.
1.12 251,088 Sq. Ft.
1.13 163,936 Sq. Ft.
1.14 277,672 Sq. Ft.
1.15 216,469 Sq. Ft.
1.16 102,822 Sq. Ft.
1.17 148,952 Sq. Ft.
1.18 764,103 Sq. Ft.
1.19 380,743 Sq. Ft.
1.20 1,079,013 Sq. Ft.
2 5.6630% 5,796 Rooms
2.01 288 Rooms
2.02 180 Rooms
2.03 216 Rooms
2.04 144 Rooms
2.05 120 Rooms
2.06 112 Rooms
2.07 109 Rooms
2.08 126 Rooms
2.09 106 Rooms
2.10 147 Rooms
2.11 152 Rooms
2.12 114 Rooms
2.13 128 Rooms
2.14 126 Rooms
2.15 128 Rooms
2.16 123 Rooms
2.17 110 Rooms
2.18 120 Rooms
2.19 112 Rooms
2.20 123 Rooms
2.21 136 Rooms
2.22 123 Rooms
2.23 144 Rooms
2.24 144 Rooms
2.25 112 Rooms
2.26 136 Rooms
2.27 120 Rooms
2.28 112 Rooms
2.29 120 Rooms
2.30 88 Rooms
2.31 128 Rooms
2.32 130 Rooms
2.33 120 Rooms
2.34 145 Rooms
2.35 94 Rooms
2.36 92 Rooms
2.37 104 Rooms
2.38 118 Rooms
2.39 88 Rooms
2.40 96 Rooms
2.41 98 Rooms
2.42 99 Rooms
2.43 124 Rooms
2.44 105 Rooms
2.45 144 Rooms
2.46 92 Rooms
3 5.6000% 7,297,943 Sq. Ft.
3.01 245,774 Sq. Ft.
3.02 260,797 Sq. Ft.
3.03 227,209 Sq. Ft.
3.04 307,716 Sq. Ft.
3.05 312,546 Sq. Ft.
3.06 273,307 Sq. Ft.
3.07 281,244 Sq. Ft.
3.08 240,560 Sq. Ft.
3.09 272,385 Sq. Ft.
3.10 227,085 Sq. Ft.
3.11 108,565 Sq. Ft.
3.12 217,619 Sq. Ft.
3.13 132,745 Sq. Ft.
3.14 271,729 Sq. Ft.
3.15 149,658 Sq. Ft.
3.16 126,486 Sq. Ft.
3.17 186,212 Sq. Ft.
3.18 130,609 Sq. Ft.
3.19 152,667 Sq. Ft.
3.20 119,197 Sq. Ft.
3.21 243,176 Sq. Ft.
3.22 158,222 Sq. Ft.
3.23 89,627 Sq. Ft.
3.24 82,441 Sq. Ft.
3.25 104,460 Sq. Ft.
3.26 204,216 Sq. Ft.
3.27 121,766 Sq. Ft.
3.28 71,430 Sq. Ft.
3.29 66,539 Sq. Ft.
3.30 98,317 Sq. Ft.
3.31 69,471 Sq. Ft.
3.32 137,757 Sq. Ft.
3.33 125,653 Sq. Ft.
3.34 90,566 Sq. Ft.
3.35 83,929 Sq. Ft.
3.36 95,229 Sq. Ft.
3.37 117,723 Sq. Ft.
3.38 93,643 Sq. Ft.
3.39 70,555 Sq. Ft.
3.40 128,210 Sq. Ft.
3.41 75,492 Sq. Ft.
3.42 73,271 Sq. Ft.
3.43 67,721 Sq. Ft.
3.44 76,512 Sq. Ft.
3.45 62,840 Sq. Ft.
3.46 60,712 Sq. Ft.
3.47 67,475 Sq. Ft.
3.48 73,986 Sq. Ft.
3.49 68,927 Sq. Ft.
3.50 66,986 Sq. Ft.
3.51 49,097 Sq. Ft.
3.52 57,884 Sq. Ft.
4 5.9200% 354,298 Sq. Ft.
5 6.3800% 343 Rooms
6 5.5100% 678,553 Sq. Ft.
6.01 432,327 Sq. Ft.
6.02 143,129 Sq. Ft.
6.03 103,097 Sq. Ft.
7 5.9523333333% 1,396 Rooms
7.01 400 Rooms
7.02 312 Rooms
7.03 150 Rooms
7.04 388 Rooms
7.05 146 Rooms
8 5.6810% 413,828 Sq. Ft.
9 5.7550% 539,661 Sq. Ft.
10 5.6450% 287,494 Sq. Ft.
11 12 or more (max 5 notices, no more than 2 per year) 5.6800% 296,707 Sq. Ft.
12 5.3100% 524,479 Sq. Ft.
13 5.7530% 186,575 Sq. Ft.
14 5.9800% 414,202 Sq. Ft.
15 5.6450% 165,184 Sq. Ft.
16 5.6950% 166,761 Sq. Ft.
17 5.5900% 165,662 Sq. Ft.
18 5.6450% 147,047 Sq. Ft.
19 5.5500% 309,360 Sq. Ft.
20 5.8900% 251 Rooms
21 5.4800% 712 Units
21.01 456 Units
21.02 256 Units
22 5.9800% 176,977 Sq. Ft.
22.01 92,996 Sq. Ft.
22.02 83,981 Sq. Ft.
23 5.7800% 190 Rooms
24 5.9700% 931,560 Sq. Ft.
25 5.8100% 404 Units
26 5.9070% 498 Rooms
27 5.6800% 518 Units
28 5.6500% 369 Units
29
30 5.8300% 318 Units
31 5.8100% 318 Units
32 5.6400% 171,955 Sq. Ft.
33 6.0500% 372 Rooms
34 5.5900% 272,181 Sq. Ft.
35 5.5745% 101,278 Sq. Ft.
36 10 5.8400% 225,922 Sq. Ft.
37 5.6800% 441,648 Sq. Ft.
38 5.8000% 392 Units
39 5.7700% 191 Rooms
40 5.7000% 6,000 Sq. Ft.
41 5.5900% 316,576 Sq. Ft.
42 5.5200% 74,786 Sq. Ft.
43 5.7400% 17,000 Sq. Ft.
44 5.7170% 54,000 Sq. Ft.
45 5.6000% 232 Units
46 5.8100% 127,484 Sq. Ft.
47 5.7600% 168,791 Sq. Ft.
48 5.6800% 93,665 Sq. Ft.
49 6.1500% 152 Units
50 5.6680% 131,317 Sq. Ft.
51 5.6500% 185,327 Sq. Ft.
52 5.7900% 312 Units
53 5.7000% 89,004 Sq. Ft.
54 5.8100% 60,000 Sq. Ft.
55 6.5800% 924 Units
56 5.7800% 180,990 Sq. Ft.
57 5.5200% 114,971 Sq. Ft.
57.01 91,654 Sq. Ft.
57.02 23,317 Sq. Ft.
58 5.7700% 43,028 Sq. Ft.
58.01 13,356 Sq. Ft.
58.02 8,902 Sq. Ft.
58.03 9,010 Sq. Ft.
58.04 6,000 Sq. Ft.
58.05 5,760 Sq. Ft.
59 5.6500% 104 Units
60 5.5900% 85,277 Sq. Ft.
61 5.6500% 192 Units
62 6.0300% 139 Beds
63 5.8400% 67,922 Sq. Ft.
64 7.1300% 41,400 Sq. Ft.
65 5.7300% 85,636 Sq. Ft.
66 5.1800% 243 Units
67 5.8100% 56,351 Sq. Ft.
68 5.8800% 70,722 Sq. Ft.
69 5.6600% 216 Units
70 5.7800% 96 Units
71 5.6500% 506,828 Sq. Ft.
72 5.9000% 50,962 Sq. Ft.
73 5.5600% 69,043 Sq. Ft.
74 5.5500% 27,715 Sq. Ft.
75 5.7900% 216 Units
76 6.2280% 80,201 Sq. Ft.
77 5.7500% 169 Units
78 5.5600% 131,572 Sq. Ft.
79 5.6100% 52,441 Sq. Ft.
80 5.7200% 285 Units
81 5.7600% 103,429 Sq. Ft.
82 6.0800% 57,753 Sq. Ft.
82.01 35,404 Sq. Ft.
82.02 22,349 Sq. Ft.
83 5.6300% 132 Units
84 5.6000% 79,546 Sq. Ft.
85 5.5400% 55,132 Sq. Ft.
86 5.8900% 17,207 Sq. Ft.
87 5.6800% 61,896 Sq. Ft.
88 5.7900% 27,954 Sq. Ft.
89 5.9800% 35,113 Sq. Ft.
90 5.5900% 125,626 Sq. Ft.
91 5.5500% 186 Units
92 5.9610% 139,456 Sq. Ft.
93 5.6640% 39,935 Sq. Ft.
94 5.5500% 43,677 Sq. Ft.
95 5.5500% 196 Units
96 5.7200% 203 Units
97 6.0900% 80 Rooms
98 5.9200% 48,750 Sq. Ft.
99 5.7300% 176 Units
100 5.4500% 107,520 Sq. Ft.
101 5.9300% 26,489 Sq. Ft.
102 5.7800% 88,577 Sq. Ft.
103 5.9410% 38,247 Sq. Ft.
104 5.9000% 19,600 Sq. Ft.
105 5.9800% 621,847 Sq. Ft.
105.01 104,315 Sq. Ft.
105.02 254,850 Sq. Ft.
105.03 218,100 Sq. Ft.
105.04 35,870 Sq. Ft.
105.05 8,712 Sq. Ft.
106 5.8000% 33,586 Sq. Ft.
107 6.1900% 19,891 Sq. Ft.
108 5.7400% 204 Units
109 5.8500% 48,998 Sq. Ft.
110 5.6500% 59,709 Sq. Ft.
111 5.6900% 34,767 Sq. Ft.
112 5.9300% 66 Units
113 5.7800% 63 Units
114 5.5700% 83 Units
115 6.0200% 71,268 Sq. Ft.
116 5.7100% 19,715 Sq. Ft.
117 6.0600% 75 Rooms
118 5.7700% 32,009 Sq. Ft.
119 6.5800% 30,772 Sq. Ft.
120 6.0600% 60 Units
121 5.7900% 177,865 Sq. Ft.
122 5.9600% 118 Rooms
123 5.9900% 229,500 Sq. Ft.
124 5.8900% 26,552 Sq. Ft.
125 6.0530% 64,197 Sq. Ft.
126 5.7200% 18,000 Sq. Ft.
127 5.7500% 51 Units
128 5.9800% 68,750 Sq. Ft.
129 5.9800% 53,763 Sq. Ft.
130 5.4600% 14,820 Sq. Ft.
131 5.9900% 141,916 Sq. Ft.
132 6.2700% 16,488 Sq. Ft.
133 5.6700% 21,688 Sq. Ft.
134 5.6700% 23,627 Sq. Ft.
135 5.9300% 32,416 Sq. Ft.
136 6.2900% 41,593 Sq. Ft.
137 6.2700% 23,286 Sq. Ft.
138 6.0200% 31 Rooms
139 5.8300% 40,025 Sq. Ft.
140 5.8900% 4,022 Sq. Ft.
141 5.7800% 8,064 Sq. Ft.
142 5.8300% 20,000 Sq. Ft.
143 5.7800% 3,608 Sq. Ft.
Mortgage Loan Number Original Term to Maturity or ARD (Mos.) Remaining Term to Maturity or ARD (Mos.) Maturity Date or ARD
- -------------------- --------------------------------------- ---------------------------------------- --------------------
1 60 59 05/07/12
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2 60 60 06/11/12
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3 120 120 07/05/17
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
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
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 120 118 04/11/17
5 120 120 06/11/17
6 120 120 06/11/17
6.01
6.02
6.03
7 120 118 04/11/17
7.01
7.02
7.03
7.04
7.05
8 60 59 05/11/12
9 120 119 05/11/17
10 126 124 10/11/17
11 120 118 04/01/17
12 120 120 06/11/17
13 120 119 05/11/17
14 120 120 06/11/17
15 126 124 10/11/17
16 60 59 05/11/12
17 120 119 05/11/17
18 126 124 10/11/17
19 120 119 05/11/17
20 120 119 05/11/17
21 120 119 05/11/17
21.01
21.02
22 120 119 05/11/17
22.01
22.02
23 120 119 05/11/17
24 120 118 04/11/17
25 60 60 06/11/12
26 120 118 04/11/17
27 120 119 05/11/17
28 120 119 05/11/17
29
30 120 119 05/11/17
31 60 60 06/11/12
32 120 119 05/11/17
33 120 118 04/11/17
34 120 119 05/11/17
35 120 120 06/11/17
36 120 119 05/01/17
37 120 118 04/11/17
38 120 119 05/11/17
39 60 59 05/11/12
40 120 120 06/11/17
41 120 119 05/11/17
42 120 119 05/11/17
43 120 120 06/11/17
44 60 59 05/11/12
45 120 117 03/11/17
46 120 119 05/11/17
47 120 119 05/11/17
48 120 119 05/11/17
49 60 59 05/11/12
50 120 119 05/11/17
51 120 119 05/11/17
52 60 59 05/11/12
53 120 120 06/11/17
54 84 83 05/11/14
55 60 58 04/11/12
56 120 119 05/11/17
57 120 119 05/11/17
57.01
57.02
58 120 119 05/11/17
58.01
58.02
58.03
58.04
58.05
59 120 119 05/11/17
60 120 119 05/11/17
61 120 119 05/11/17
62 60 57 03/11/12
63 120 119 05/11/17
64 120 116 02/11/17
65 120 120 06/11/17
66 120 120 06/11/17
67 120 117 03/11/17
68 120 119 05/11/17
69 120 118 04/11/17
70 120 118 04/11/17
71 120 119 05/11/17
72 120 119 05/11/17
73 120 120 06/11/17
74 120 119 05/11/17
75 60 59 05/11/12
76 120 120 06/11/17
77 120 120 06/11/17
78 60 59 05/11/12
79 120 119 05/11/17
80 120 119 05/11/17
81 120 119 05/11/17
82 120 120 06/11/17
82.01
82.02
83 120 120 06/11/17
84 120 119 05/11/17
85 120 120 06/11/17
86 120 120 06/11/17
87 120 119 05/11/17
88 120 120 06/11/17
89 120 119 05/11/17
90 120 119 05/11/17
91 120 119 05/11/17
92 120 120 06/11/17
93 120 119 05/11/17
94 119 118 04/11/17
95 120 119 05/11/17
96 120 119 05/11/17
97 120 119 05/11/17
98 120 117 03/11/17
99 120 120 06/11/17
100 120 119 05/11/17
101 120 119 05/11/17
102 120 120 06/11/17
103 120 120 06/11/17
104 120 120 06/11/17
105 120 119 05/11/17
105.01
105.02
105.03
105.04
105.05
106 120 119 05/11/17
107 120 120 06/11/17
108 120 119 05/11/17
109 60 59 05/11/12
110 120 119 05/11/17
111 120 119 05/11/17
112 120 119 05/11/17
113 120 119 05/11/17
114 120 118 04/11/17
115 60 53 11/11/11
116 120 120 06/11/17
117 120 118 04/11/17
118 120 117 03/11/17
119 60 59 05/11/12
120 120 120 06/11/17
121 120 119 05/11/17
122 120 120 06/11/17
123 120 117 03/11/17
124 120 119 05/11/17
125 60 60 06/11/12
126 120 119 05/11/17
127 120 120 06/11/17
128 120 119 05/11/17
129 120 119 05/11/17
130 120 116 02/11/17
131 120 117 03/11/17
132 120 120 07/11/17
133 120 116 02/11/17
134 120 116 02/11/17
135 120 118 04/11/17
136 120 120 06/11/17
137 120 120 07/11/17
138 120 119 05/11/17
139 120 118 04/11/17
140 120 120 06/11/17
141 120 120 06/11/17
142 120 118 04/11/17
143 120 120 06/11/17
Mortgage Loan Number Original Amort Term (Mos.) Remaining Amort Term (Mos.) Ground Lease Master Servicing Fee Rate ARD Loan
- -------------------- -------------------------- --------------------------- ------------ ------------------------- --------
1 IO IO Various 0.02000% N
1.01 Pledge
1.02 Fee
1.03 Fee
1.04 Fee
1.05 Fee
1.06 Leasehold
1.07 Fee
1.08 Fee
1.09 Fee
1.10 Fee
1.11 Fee
1.12 Fee
1.13 Fee
1.14 Fee
1.15 Fee
1.16 Fee
1.17 Fee
1.18 NA
1.19 NA
1.20 NA
2 IO IO Various 0.02000% N
2.01 Fee
2.02 Fee
2.03 Fee
2.04 Fee
2.05 Fee
2.06 Fee
2.07 Fee
2.08 Fee
2.09 Fee
2.10 Fee
2.11 Fee
2.12 Fee
2.13 Fee
2.14 Fee
2.15 Fee
2.16 Leasehold
2.17 Fee
2.18 Fee
2.19 Fee
2.20 Fee
2.21 Fee
2.22 Fee
2.23 Fee
2.24 Fee
2.25 Fee
2.26 Fee
2.27 Fee
2.28 Fee
2.29 Fee
2.30 Fee
2.31 Fee
2.32 Fee
2.33 Fee
2.34 Fee
2.35 Fee
2.36 Fee
2.37 Fee
2.38 Fee
2.39 Fee
2.40 Fee
2.41 Fee
2.42 Fee
2.43 Fee
2.44 Fee
2.45 Fee
2.46 Fee
3 IO IO Fee 0.02000% N
3.01 Fee
3.02 Fee
3.03 Fee
3.04 Fee
3.05 Fee
3.06 Fee
3.07 Fee
3.08 Fee
3.09 Fee
3.10 Fee
3.11 Fee
3.12 Fee
3.13 Fee
3.14 Fee
3.15 Fee
3.16 Fee
3.17 Fee
3.18 Fee
3.19 Fee
3.20 Fee
3.21 Fee
3.22 Fee
3.23 Fee
3.24 Fee
3.25 Fee
3.26 Fee
3.27 Fee
3.28 Fee
3.29 Fee
3.30 Fee
3.31 Fee
3.32 Fee
3.33 Fee
3.34 Fee
3.35 Fee
3.36 Fee
3.37 Fee
3.38 Fee
3.39 Fee
3.40 Fee
3.41 Fee
3.42 Fee
3.43 Fee
3.44 Fee
3.45 Fee
3.46 Fee
3.47 Fee
3.48 Fee
3.49 Fee
3.50 Fee
3.51 Fee
3.52 Fee
4 IO IO Leasehold 0.02000% N
5 360 360 Leasehold 0.02000% N
6 IO IO Fee 0.02000% N
6.01 Fee
6.02 Fee
6.03 Fee
7 360 360 Fee 0.02000% N
7.01 Fee
7.02 Fee
7.03 Fee
7.04 Fee
7.05 Fee
8 IO IO Fee 0.02000% N
9 IO IO Both 0.02000% N
10 IO IO Fee 0.02000% N
11 360 358 Fee 0.02000% N
12 IO IO Fee 0.02000% N
13 IO IO Fee 0.02000% N
14 IO IO Fee 0.02000% N
15 IO IO Fee 0.02000% N
16 IO IO Fee 0.02000% N
17 IO IO Fee 0.02000% N
18 IO IO Fee 0.02000% N
19 IO IO Fee 0.02000% N
20 360 360 Fee 0.02000% N
21 IO IO Fee 0.02000% N
21.01 Fee
21.02 Fee
22 IO IO Fee 0.02000% N
22.01 Fee
22.02 Fee
23 IO IO Leasehold 0.02000% N
24 IO IO Fee 0.02000% N
25 IO IO Fee 0.02000% N
26 360 360 Fee 0.02000% N
27 IO IO Fee 0.02000% N
28 IO IO Fee 0.02000% N
29
30 IO IO Fee 0.02000% N
31 IO IO Fee 0.02000% N
32 IO IO Fee 0.02000% N
33 360 360 Fee 0.06000% N
34 IO IO Fee 0.02000% N
35 IO IO Fee 0.02000% N
36 IO IO Both 0.02000% N
37 360 360 Both 0.02000% N
38 IO IO Fee 0.02000% N
39 IO IO Both 0.02000% N
40 IO IO Fee 0.02000% N
41 IO IO Fee 0.02000% N
42 IO IO Fee 0.02000% N
43 IO IO Fee 0.02000% N
44 IO IO Fee 0.02000% N
45 IO IO Fee 0.02000% N
46 IO IO Fee 0.02000% N
47 IO IO Fee 0.02000% N
48 IO IO Fee 0.02000% N
49 IO IO Fee 0.02000% N
50 360 360 Fee 0.02000% N
51 IO IO Fee 0.02000% N
52 IO IO Fee 0.02000% N
53 IO IO Fee 0.02000% N
54 IO IO Fee 0.02000% N
55 360 360 Both 0.02000% N
56 IO IO Fee 0.02000% N
57 360 360 Fee 0.02000% N
57.01 Fee
57.02 Fee
58 IO IO Fee 0.02000% N
58.01 Fee
58.02 Fee
58.03 Fee
58.04 Fee
58.05 Fee
59 IO IO Fee 0.05000% N
60 IO IO Fee 0.02000% N
61 IO IO Fee 0.05000% N
62 360 360 Fee 0.02000% N
63 360 359 Fee 0.02000% N
64 300 296 Fee 0.02000% N
65 360 360 Fee 0.02000% N
66 360 360 Fee 0.02000% N
67 IO IO Fee 0.02000% N
68 IO IO Fee 0.04000% N
69 IO IO Fee 0.02000% N
70 360 358 Fee 0.02000% N
71 360 360 Fee 0.02000% N
72 IO IO Fee 0.02000% Y
73 IO IO Fee 0.02000% N
74 IO IO Fee 0.02000% N
75 IO IO Fee 0.02000% N
76 IO IO Fee 0.02000% N
77 IO IO Fee 0.02000% N
78 IO IO Leasehold 0.02000% N
79 360 359 Fee 0.02000% N
80 360 360 Fee 0.02000% N
81 IO IO Fee 0.02000% N
82 360 360 Fee 0.02000% N
82.01 Fee
82.02 Fee
83 360 360 Fee 0.02000% N
84 IO IO Fee 0.02000% N
85 360 360 Fee 0.02000% N
86 420 420 Fee 0.02000% N
87 IO IO Fee 0.04000% N
88 IO IO Fee 0.02000% N
89 IO IO Fee 0.02000% N
90 IO IO Fee 0.02000% N
91 IO IO Fee 0.02000% N
92 360 360 Fee 0.02000% N
93 360 360 Fee 0.02000% N
94 IO IO Fee 0.02000% N
95 IO IO Fee 0.02000% N
96 360 360 Fee 0.02000% N
97 360 359 Both 0.02000% N
98 360 360 Fee 0.02000% N
99 360 360 Fee 0.02000% N
100 IO IO Fee 0.02000% Y
101 360 360 Fee 0.02000% N
102 360 360 Fee 0.02000% N
103 360 360 Fee 0.02000% N
104 IO IO Fee 0.02000% N
105 360 360 Fee 0.02000% N
105.01 Fee
105.02 Fee
105.03 Fee
105.04 Fee
105.05 Fee
106 360 360 Both 0.02000% N
107 360 360 Fee 0.02000% N
108 IO IO Fee 0.07000% N
109 IO IO Fee 0.07000% N
110 IO IO Fee 0.07000% N
111 IO IO Fee 0.02000% N
112 IO IO Fee 0.02000% N
113 IO IO Fee 0.02000% N
114 IO IO Fee 0.09000% N
115 IO IO Fee 0.02000% N
116 360 360 Fee 0.02000% N
117 360 360 Fee 0.02000% N
118 360 360 Fee 0.02000% N
119 IO IO Fee 0.07000% N
120 360 360 Fee 0.02000% N
121 360 360 Fee 0.02000% N
122 300 300 Fee 0.02000% N
123 240 237 Fee 0.02000% N
124 360 360 Fee 0.02000% N
125 IO IO Fee 0.02000% N
126 360 359 Fee 0.02000% N
127 IO IO Fee 0.02000% N
128 360 359 Leasehold 0.02000% N
129 360 359 Fee 0.02000% N
130 IO IO Fee 0.02000% Y
131 240 237 Fee 0.02000% N
132 360 360 Fee 0.02000% N
133 IO IO Fee 0.02000% Y
134 IO IO Fee 0.02000% Y
135 360 358 Fee 0.02000% N
136 360 360 Fee 0.02000% N
137 360 360 Fee 0.02000% N
138 360 360 Fee 0.07000% N
139 360 358 Fee 0.02000% N
140 360 360 Fee 0.02000% N
141 IO IO Fee 0.02000% N
142 360 358 Fee 0.02000% N
143 360 360 Fee 0.02000% N
Mortgage Loan Number Anticipated Repayment Date Additional Interest Rate Loan Originator
- -------------------- -------------------------- --------------------------------------------------------- ---------------
1 Wachovia
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2 Wachovia
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3 Wachovia
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
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
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 Wachovia
5 Wachovia
6 Wachovia
6.01
6.02
6.03
7 Wachovia
7.01
7.02
7.03
7.04
7.05
8 Wachovia
9 Wachovia
10 Wachovia
11 Wachovia
12 Wachovia
13 Wachovia
14 Wachovia
15 Wachovia
16 Wachovia
17 Wachovia
18 Wachovia
19 Wachovia
20 Wachovia
21 Wachovia
21.01
21.02
22 Wachovia
22.01
22.02
23 Wachovia
24 Wachovia
25 Wachovia
26 Wachovia
27 Wachovia
28 Wachovia
29
30 Wachovia
31 Wachovia
32 Wachovia
33 Wachovia
34 Wachovia
35 Wachovia
36 Wachovia
37 Wachovia
38 Wachovia
39 Wachovia
40 Wachovia
41 Wachovia
42 Wachovia
43 Wachovia
44 Wachovia
45 Wachovia
46 Wachovia
47 Wachovia
48 Wachovia
49 Wachovia
50 Wachovia
51 Wachovia
52 Wachovia
53 Wachovia
54 Wachovia
55 Wachovia
56 Wachovia
57 Wachovia
57.01
57.02
58 Wachovia
58.01
58.02
58.03
58.04
58.05
59 Wachovia
60 Wachovia
61 Wachovia
62 Wachovia
63 Wachovia
64 Wachovia
65 Wachovia
66 Wachovia
67 Wachovia
68 Wachovia
69 Wachovia
70 Wachovia
71 Wachovia
72 5/11/2017 Greater of initial interest rate plus 3% or Wachovia
TCMYI plus 3% (capped at Maximum Lawful Rate)
73 Wachovia
74 Wachovia
75 Wachovia
76 Wachovia
77 Wachovia
78 Wachovia
79 Wachovia
80 Wachovia
81 Wachovia
82 Artesia
82.01
82.02
83 Artesia
84 Wachovia
85 Wachovia
86 Wachovia
87 Wachovia
88 Artesia
89 Wachovia
90 Wachovia
91 Wachovia
92 Wachovia
93 Wachovia
94 Wachovia
95 Wachovia
96 Wachovia
97 Wachovia
98 Artesia
99 Artesia
100 5/11/2017 Lesser of the greater of initial interest rate Wachovia
plus 2.5% or TCMYI plus 2.5%
101 Wachovia
102 Artesia
103 Wachovia
104 Artesia
105 Wachovia
105.01
105.02
105.03
105.04
105.05
106 Wachovia
107 Artesia
108 Wachovia
109 Wachovia
110 Wachovia
111 Wachovia
112 Wachovia
113 Wachovia
114 Wachovia
115 Wachovia
116 Artesia
117 Wachovia
118 Artesia
119 Wachovia
120 Artesia
121 Wachovia
122 Wachovia
123 Wachovia
124 Wachovia
125 Wachovia
126 Wachovia
127 Wachovia
128 Wachovia
129 Wachovia
130 2/11/2017 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia
131 Wachovia
132 Artesia
133 2/11/2017 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia
134 2/11/2017 Greater of initial interest rate plus 2% or TCMYI plus 2% Wachovia
135 Wachovia
136 Artesia
137 Artesia
138 Wachovia
139 Wachovia
140 Artesia
141 Artesia
142 Wachovia
143 Artesia
Mortgage Loan Number Environmental Insurance Cross Collateralized and Cross Defaulted Loan Flag Prepayment Provisions
- -------------------- ----------------------- -------------------------------------------------- ---------------------
1 N Y
1.01 N
1.02 N
1.03 N
1.04 N
1.05 N
1.06 N
1.07 N
1.08 N
1.09 N
1.10 N
1.11 N
1.12 N
1.13 N
1.14 N
1.15 N
1.16 N
1.17 N
1.18 N
1.19 N
1.20 N
2 N N
2.01 N
2.02 N
2.03 N
2.04 N
2.05 N
2.06 N
2.07 N
2.08 N
2.09 N
2.10 N
2.11 N
2.12 N
2.13 N
2.14 N
2.15 N
2.16 N
2.17 N
2.18 N
2.19 N
2.20 N
2.21 N
2.22 N
2.23 N
2.24 N
2.25 N
2.26 N
2.27 N
2.28 N
2.29 N
2.30 N
2.31 N
2.32 N
2.33 N
2.34 N
2.35 N
2.36 N
2.37 N
2.38 N
2.39 N
2.40 N
2.41 N
2.42 N
2.43 N
2.44 N
2.45 N
2.46 N
3 N N
3.01 N
3.02 N
3.03 N
3.04 N
3.05 N
3.06 N
3.07 N
3.08 N
3.09 N
3.10 N
3.11 N
3.12 N
3.13 N
3.14 N
3.15 N
3.16 N
3.17 N
3.18 N
3.19 N
3.20 N
3.21 N
3.22 N
3.23 N
3.24 N
3.25 N
3.26 N
3.27 N
3.28 N
3.29 N
3.30 N
3.31 N
3.32 N
3.33 N
3.34 N
3.35 N
3.36 N
3.37 N
3.38 N
3.39 N
3.40 N
3.41 N
3.42 N
3.43 N
3.44 N
3.45 N
3.46 N
3.47 N
3.48 N
3.49 N
3.50 N
3.51 N
3.52 N
4 N Y
5 N Y
6 N N
6.01 N
6.02 N
6.03 N
7 N Y
7.01 N
7.02 N
7.03 N
7.04 N
7.05 N
8 N Y
9 N Y
10 N Y
11 N Y
12 N Y
13 N Y
14 N Y
15 N Y
16 N Y
17 N N
18 N Y
19 N N
20 N Y
21 N Y
21.01 N
21.02 N
22 N Y
22.01 N
22.02 N
23 N Y
24 N Y
25 N N
26 N Y
27 N Y
28 N Y
29
30 N N
31 N N
32 N Y
33 N N
34 N Y
35 N Y
36 N Y
37 N Y
38 N Y
39 N N
40 N Y
41 N Y
42 N Y
43 N Y
44 N Y
45 N Y
46 N Y
47 N Y
48 N Y
49 N N
50 N Y
51 N N
52 N Albuquerque Multifamily Portfolio Y
53 N N
54 N Y
55 N N
56 N Y
57 N Y
57.01 N
57.02 N
58 N Y
58.01 N
58.02 N
58.03 N
58.04 N
58.05 N
59 N Y
60 N Y
61 N N
62 N N
63 N Y
64 N N
65 N Y
66 N Y
67 N Y
68 N N
69 N Y
70 N Y
71 N Y
72 N N
73 N Y
74 N N
75 N Albuquerque Multifamily Portfolio Y
76 N N
77 N N
78 N N
79 N Y
80 N N
81 N Y
82 N Y
82.01 N
82.02 N
83 N Y
84 N Y
85 N Y
86 N Y
87 N N
88 N N
89 N Y
90 N Y
91 N Y
92 N N
93 N Y
94 N Y
95 N Y
96 N N
97 N Y
98 N Y
99 N Y
100 N Y
101 N N
102 N Y
103 N N
104 N Y
105 N Y
105.01 N
105.02 N
105.03 N
105.04 N
105.05 N
106 N Y
107 N Y
108 N Y
109 N Y
110 N Y
111 N N
112 N Y
113 N Y
114 N N
115 N Y
116 N N
117 N Y
118 Y Y
119 N N
120 N Y
121 N Y
122 N N
123 N Warehouse Terminal Portfolio Y
124 N Y
125 N N
126 N Y
127 N Y
128 N Y
129 N Y
130 N Y
131 N Warehouse Terminal Portfolio Y
132 N Y
133 N Y
134 N Y
135 N Archives One Portfolio Y
136 N Y
137 N Y
138 N N
139 N Archives One Portfolio Y
140 N N
141 N Y
142 N Archives One Portfolio Y
143 N N
Mortgage Loan Number Early Defeasance Secured by LC Interest Accrual Method Lockbox Annual Deposit to Replacement Reserves
- -------------------- ---------------- ------------- ----------------------- --------- --------------------------------------
1 N N Actual/360 Day 1
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2 N N Actual/360 Springing
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3 Y N Actual/360
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
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
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 N N Actual/360 Day 1 35,904
5 N N Actual/360 Day 1 4.0% of Yearly Gross Revenue
6 N N Actual/360
6.01
6.02
6.03
7 N N Actual/360 Day 1 4.0% of Yearly Gross Revenue
7.01
7.02
7.03
7.04
7.05
8 N N Actual/360 Day 1 41,383
9 N N Actual/360 53,966
10 Y N Actual/360 Day 1
11 Y N 30/360 Day 1
12 N N Actual/360 Day 1
13 N N Actual/360 Day 1 20,523
14 N Y Actual/360 Day 1 53,847
15 Y N Actual/360 Day 1
16 N N Actual/360 Day 1 25,014
17 N N Actual/360
18 Y N Actual/360 Day 1
19 N N Actual/360
20 N N Actual/360 Day 1 541,848
21 N N Actual/360 200,040
21.01
21.02
22 N N Actual/360 Day 1 48,894
22.01
22.02
23 N N Actual/360 Springing 282,996
24 N Y Actual/360 Day 1 27,947
25 N Y Actual/360 98,976
26 N N Actual/360 Day 1 4.0% of Yearly Gross Revenue
27 N N Actual/360 Day 1 77,700
28 N N Actual/360 92,250
29
30 N N Actual/360 Springing
31 N Y Actual/360 71,556
32 N N Actual/360 46,428
33 N N Actual/360 587,352
34 N N Actual/360
35 N N Actual/360 Springing 15,192
36 N N Actual/360
37 N N Actual/360 Day 1 20,209
38 N Y Actual/360 58,800
39 N N Actual/360
40 N N Actual/360 Day 1
41 N N Actual/360
42 N N Actual/360
43 N N Actual/360
44 N N Actual/360 Day 1 4,960
45 N N Actual/360 77,700
46 N Y Actual/360
47 N N Actual/360 64,141
48 N N Actual/360 Day 1 9,366
49 N N Actual/360
50 N N Actual/360
51 N N Actual/360
52 N N Actual/360 24,648
53 N N Actual/360
54 N N Actual/360 7,800
55 N N Actual/360 40,572
56 N Y Actual/360 18,099
57 N Actual/360 22,994
57.01
57.02
58 N Actual/360
58.01
58.02
58.03
58.04
58.05
59 N N Actual/360 Springing 25,792
60 N N Actual/360
61 N N Actual/360
62 N N Actual/360
63 N N Actual/360
64 N N Actual/360 6,210
65 N N Actual/360 Day 1 6,851
66 N N Actual/360 Springing 60,750
67 N N Actual/360 23,667
68 N N Actual/360 7,072
69 N N Actual/360 54,000
70 N N Actual/360
71 N N Actual/360
72 N N Actual/360 Day 1
73 N N Actual/360 15,190
74 N N Actual/360
75 N N Actual/360 22,464
76 N N Actual/360 20,400
77 N N Actual/360 Springing
78 N N Actual/360
79 N N Actual/360
80 N N Actual/360 71,250
81 N Y Actual/360 10,400
82 N N Actual/360 Day 1 11,551
82.01
82.02
83 N N Actual/360 35,433
84 N N Actual/360
85 N N Actual/360 11,028
86 N N Actual/360 3,786
87 N N Actual/360 Day 1 12,998
88 N N Actual/360 4,193
89 N N Actual/360 Springing 8,778
90 N N Actual/360
91 N N Actual/360 68,634
92 N N Actual/360 33,469
93 N N Actual/360 3,993
94 N N Actual/360 Springing 6,552
95 N N Actual/360 48,216
96 N N Actual/360 50,750
97 N N Actual/360 3.0% of Yearly Gross Revenue
98 N N Actual/360
99 N N Actual/360 49,104
100 N N Actual/360 Day 1
101 N N Actual/360 2,656
102 N N Actual/360 24,802
103 N N Actual/360 4,972
104 N N Actual/360
105 N N Actual/360
105.01
105.02
105.03
105.04
105.05
106 N Y Actual/360
107 N N Actual/360 3,978
108 N N Actual/360
109 N N Actual/360
110 N N Actual/360 11,999
111 N N Actual/360
112 N N Actual/360 16,500
113 N N Actual/360 12,600
114 N N Actual/360 16,600
115 N N Actual/360 Springing 5,701
116 N N Actual/360 1,971
117 N N Actual/360 56,114
118 N N Actual/360
119 N N Actual/360
120 N N Actual/360 12,000
121 N N Actual/360 Springing
122 N N Actual/360 70,862
123 N N Actual/360 22,950
124 N N Actual/360 2,655
125 N N Actual/360 10,272
126 N N Actual/360 Springing 1,800
127 N N Actual/360 10,200
128 N N Actual/360 6,875
129 N N Actual/360
130 N N Actual/360 Springing
131 N N Actual/360 14,192
132 Y N Actual/360 3,298
133 N N Actual/360 Springing
134 N N Actual/360 Springing
135 N N Actual/360
136 N N Actual/360 8,319
137 Y N Actual/360 3,959
138 N N Actual/360 16,563
139 N N Actual/360
140 N N Actual/360 603
141 N N Actual/360 Springing
142 N N Actual/360
143 N N Actual/360
Mortgage Loan Number Initial Deposit to Capital Improvements Reserve Initial TI/LC Escrow Ongoing TI/LC Footnote
- -------------------- ----------------------------------------------- -------------------- ----------------------
1 18,200,095
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
2
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
3
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
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
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
4 102,750 3,000,000
5
6
6.01
6.02
6.03
7 2,500
7.01
7.02
7.03
7.04
7.05
8 3,815,394 3,500,000 (3)
9 (3)
10 3,756,047
11
12
13 86,710 3,000,000 (3)
14 17,500
15 1,719,172
16 3,239,131 2,000,000 (3)
17
18 1,940,921
19
20
21
21.01
21.02
22
22.01
22.02
23 6,250
24 44,375
25
26
27
28
29
30
31
32 (3)
33 85,000
34
35 1,300,000
36
37
38
39
40 31,000
41 31,250
42
43
44 1,150,000 (3)
45 37,500
46
47
48
49
50 665,000
51
52
53
54 (3)
55
56
57 (3)
57.01
57.02
58
58.01
58.02
58.03
58.04
58.05
59
60
61
62
63
64
65
66
67 250,000 (3)
68 500,000 (3)
69
70
71
72
73 (3)
74
75
76 200,000 (3)
77
78
79
80 635,345
81
82 (3)
82.01
82.02
83 166,425
84
85 (3)
86 (3)
87 (3)
88 (3)
89
90
91 828,748
92 175,000 (3)
93 (3)
94 23,125
95 127,075
96 364,597
97
98
99
100
101 (3)
102 (3)
103 (3)
104 (3)
105
105.01
105.02
105.03
105.04
105.05
106 (3)
107 50,000 (3)
108
109 146,000
110 (3)
111
112
113
114
115 93,500
116 73,931 (3)
117 1,047,931
118 385,000
119 117,000
120
121 50,000
122
123
124 (3)
125 20,000 (3)
126
127
128
129 214,375
130
131
132 130,000 (3)
133
134
135
136 86,625 (3)
137 58,215 40,000 (3)
138 13,750
139
140 13,072 (3)
141
142
143
(1) Three Mortgage Loans (loan numbers 1, 2 and 3) are part of a split loan
structure and the related pari passu companion loans are not included in
the Trust Fund with respect to the Mortgage Loan, unless otherwise
specified. With respect to these Mortgage Loans, unless otherwise
specified, the calculations of LTV Ratios, DSC Ratios and Cut-Off Date
Balances per unit are based on the aggregate indebtedness of or debt
service on, as applicable, the related Mortgage Loan and the related pari
passu companion loan.
(2) With respect to the DDR Southeast Pool Loan (loan number 3), representing
5.8% of the Cut-Off Date Pool Balance (6.5% of the Cut-Off Date Group 1
Balance), an exception to the prepayment protection exists in that the
borrower may voluntarily prepay up to 10.0% of the initial principal
balance of such loan at any time without any obligation to pay any yield
maintenance charge or prepayment premium in connection with such
prepayment.
(3) In addition to any escrows funded at loan closing for potential TI/LC
expenses, the related Mortgage Loan requires funds to be escrowed during
some or all of the loan terms for TI/LC expenses, which may be incurred
during the term of the related Mortgage Loans. In certain instances,
escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
(4) Annual deposits to the replacement reserve are $541,848 through the first
year and 4.0% of gross revenue thereafter.
(5) Commencing March 11, 2009, annual deposits to the replacement reserve are
$200,040.
(6) Commencing July 11, 2009, annual deposit to the replacement reserve is
$98,976.
(7) Commencing on November 11, 2008 annual deposits to the replacement reserve
are $77,700.
(8) Loan number 29 was removed from Annex A-1 included in the Free Writing
Prospectus dated June 10, 2007.
(9) Commencing July 11, 2009, annual deposits to the replacement reserve are
$71,556.
(10) Annual deposits to the replacement reserve are $587,352 through April 11,
2008 and 4.0% of gross revenue thereafter.
(11) The interest rate with respect to the Siena Office Park Loan (loan number
35), representing 0.7% of the Cut-Off Date Pool Balance (0.8% of the
Cut-Off Date Group 1 Balance) may vary during the term of the related
Mortgage Loan. For purposes of the table above as well as calculations
throughout the Prospectus Supplement, the mortgage rate was assumed to be
the average mortgage rate over the term of the related Mortgage Loan. See
"DESCRIPTION OF THE MORTGAGE POOL--Additional Mortgage Loan Information"
in the Prospectus Supplement.
(12) Commencing July 11, 2011, annual deposits to the replacement reserve are
$15,192.
(13) Commencing on June 11, 2010, annual deposits to the replacement reserve
are $25,792.
(14) With respect to the Midtown Square Loan (loan number 74), representing
0.3% of the Cut-Off Date Pool Balance (0.3% of the Cut-Off Date Group 1
Balance), the second largest tenant was determined to be as such based on
the annual base rent paid by the tenant.
(15) Commencing on May 11, 2010, annual deposits to the replacement reserve are
$71,250.
(16) Commencing May 11, 2010, annual deposits to the replacement reserve are
$50,750.
(17) Deposit to the replacement reserve is $6,025 on the first payment date and
annual deposits are 3.0% of gross revenue thereafter.
(18) Commencing June 11, 2010, annual deposits to the replacement reserve are
$2,656.
(19) With respect to the Barchester Pool Loan (loan number 105), representing
0.2% of the Cut-Off Date Pool Balance (0.2% of the Cut-Off Date Group 1
Balance), as of the origination of the related Mortgage Loan, one
Mortgaged Property was improved with a mixed use office/retail building,
one was improved with an apartment complex, one was improved with
multifamily condominium complex, one was improved with a high rise office
building and a seven-story parking garage and the other was improved with
a mixed use project that includes an office tower, retail arcade,
underground parking facilities, meeting space and a 395-room luxury hotel;
however, in all cases, the improvements are not part of the collateral for
the related Mortgaged Property.
(20) Annual deposits to the replacement reserve are $70,682 during the first
year and 4.0% of gross revenue thereafter.
(21) Annual deposits to the replacement reserve are $16,563 through May 11,
2008 and 4.0% of gross revenue thereafter.
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
Wachovia Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates Series 2007-C32
Collateral ID Property Name Pool ID Collgroup Investor ID AlternateLoanID Casenum
- ------------- ------------------------------------------ ------- ----------- ----------- --------------- -------
12007C32 Beacon D.C. & Seattle Pool(3) 2007C32 WACH062707
22007C32 ING Hospitality Pool(3) 2007C32 WACH062707T WACH 2860265 KILP
22007C32 ING Hospitality Pool(3) 2007C32 WACH062707T WACH 2860265 KILP
32007C32 DDR Southeast Pool (3)(4) 2007C32 WACH062707T WACH 2860416 CADW
42007C32 Two Herald Square 2007C32 WACH062707T WACH 2859109 W&ST
52007C32 Westin Grand Cayman 2007C32 WACH062707T WACH 2859024 CADW
62007C32 DDR-TRT Pool 2007C32 WACH062707T WACH 2860893 CADW
82007C32 17 Battery Place South 2007C32 WACH062707T WACH 2859656 PROS
92007C32 Rockvale Square 2007C32 WACH062707T WACH 2859523 CADW
112007C32 Citadel Mall 2007C32 WACH062707T WACH 2859398 KILP
122007C32 Port Chester Shopping Center 2007C32 WACH062707T WACH 2859431 W&ST
132007C32 60 Madison Ave 2007C32 WACH062707T WACH 2859783 PROS
142007C32 3600 Wilshire 2007C32 WACH062707T WACH 2857975
162007C32 450-460 Park Ave South 2007C32 WACH062707T WACH 2859821 PROS
172007C32 Stadium Crossings 2007C32 WACH062707T WACH 2859841 MOOR
192007C32 Roosevelt Square S/C 2007C32 WACH062707T WACH 2859873 KILP
202007C32 Marriott - Mobile, AL 2007C32 WACH062707T WACH 2860560 PROS
212007C32 Chenal Lakes Apartments 2007C32 WACH062707T WACH 2860552
222007C32 Sherman Oaks Atrium 2007C32 WACH062707T WACH 2860124 KILP
232007C32 Portofino Inn & Suites 2007C32 WACH062707T WACH 2859935 KILP
242007C32 Barrington Business Center 2007C32 WACH062707T WACH 2859448 W&ST
252007C32 Mountain Shadow Apartments 2007C32 WACH062707T WACH 2860408 MOOR
262007C32 Courtyard by Marriott - Philadelphia 2007C32 WACH062707T WACH 2860793 PROS
272007C32 Town Center Apartments 2007C32 WACH062707T WACH 9850640 W&ST
282007C32 The Gates 2007C32 WACH062707T WACH 2859519 W&ST
302007C32 Environs Residential Community 2007C32 WACH062707T WACH 2859429 MOOR
312007C32 Summit Trails Apartments 2007C32 WACH062707T WACH 2860406 MOOR
322007C32 Wellington Marketplace 2007C32 WACH062707T WACH 5850256 KILP
332007C32 Sheraton Richmond West 2007C32 WACH062707T WACH 2859648 MOOR
342007C32 Franklin Square III 2007C32 WACH062707T WACH 2859668 MOOR
352007C32 Siena Office Park 2007C32 WACH062707T WACH 2859537
362007C32 Columbus Park Crossing South 2007C32 WACH062707T WACH 2857074 MOOR
372007C32 Vestal Park 2007C32 WACH062707T WACH 2859509 W&ST
382007C32 Amber Place 2007C32 WACH062707T WACH 2859573 MOOR
392007C32 Wyndham - Midtown 2007C32 WACH062707T WACH 2860113 KILP
412007C32 Marietta Trade Center 2007C32 WACH062707T WACH 2859671 MOOR
422007C32 Majestic Square 2007C32 WACH062707T WACH 2857314 KILP
432007C32 138 Spring Street 2007C32 WACH062707T WACH 2860464 KILP
442007C32 72 Madison Ave 2007C32 WACH062707T WACH 2859779 PROS
452007C32 University Centre 2007C32 WACH062707T WACH 2859280 KILP
472007C32 Wildwood North Shopping Center 2007C32 WACH062707T WACH 2856798 MOOR
482007C32 Federal Law Center 2007C32 WACH062707T WACH 2859597 KILP
492007C32 Estancia Apartments 2007C32 WACH062707T WACH 2859891 KILP
502007C32 Colonial Promenade Bear Lake 2007C32 WACH062707T WACH 2859372 MOOR
512007C32 199 & 201 Riverneck Road 2007C32 WACH062707T WACH 2859932 CADW
522007C32 Villa del Oso 2007C32 WACH062707T WACH 9850575 MOOR
532007C32 Mount Pleasant Square Shopping Center 2007C32 WACH062707T WACH 2860362 KILP
542007C32 65 W. 36th Street20 2007C32 WACH062707T WACH 2859810 W&ST
552007C32 Lazy Days Marina 2007C32 WACH062707T WACH 2860202 MOOR
562007C32 Athens West 2007C32 WACH062707T WACH 2858970 MOOR
572007C32 Peachtree Medical Office Portfolio 2007C32 WACH062707T WACH 2860706 KILP
582007C32 BPRE Pool 2007C32 WACH062707T WACH 2860236 KILP
592007C32 Porto Bella Apartments 2007C32 WACH062707T WACH 2860470 KILP
602007C32 Shoppes at Woodhill 2007C32 WACH062707T WACH 2859669 MOOR
612007C32 Le Coeur du Monde Apartments 2007C32 WACH062707T WACH 2860449 MOOR
622007C32 Barrington Terrace 2007C32 WACH062707T WACH 2859530 MOOR
632007C32 Sunset Commons 2007C32 WACH062707T WACH 2859485 MOOR
642007C32 Downers Grove XSport Fitness 2007C32 WACH062707T WACH 2859472 W&ST
652007C32 Topsham Crossing Center 2007C32 WACH062707T WACH 2860058 W&ST
662007C32 Chartwell Court 2007C32 WACH062707T WACH 2860360 KILP
672007C32 Cupertino Town Center 2007C32 WACH062707T WACH 2858693 KILP
682007C32 One Front Street 2007C32 WACH062707T WACH 2859096 MOOR
692007C32 Pine Winds Apartments 2007C32 WACH062707T WACH 2855299 KILP
702007C32 Port Warwick 2007C32 WACH062707T WACH 2859565 KILP
712007C32 Michael's Distribution Center 2007C32 WACH062707T WACH 2858762 MOOR
722007C32 Parmer McNeil Plaza 2007C32 WACH062707T WACH 2860001 KILP
732007C32 181 Second Avenue 2007C32 WACH062707T WACH 2860532 MOOR
742007C32 Midtown Square 2007C32 WACH062707T WACH 2860114 KILP
752007C32 Vista Montana 2007C32 WACH062707T WACH 2861032 MOOR
762007C32 1500 West Park Drive 2007C32 FUNB053007 WACH 2860450
772007C32 Colony Grove Apartments 2007C32 WACH062707T WACH 2860703 MOOR
782007C32 Glenwood Plaza 2007C32 WACH062707T WACH 2860419 KILP
792007C32 Mayfaire Towne Center 2007C32 WACH062707T WACH 2860094 KILP
802007C32 Deerwood Crossing (SF) 2007C32 WACH062707T WACH 2860437 MOOR
812007C32 English Village 2007C32 WACH062707T WACH 2859361 MOOR
832007C32 Sunnygate Village Apartments 2007C32 ARTS061507 AMCC 010-00002027
842007C32 Coddle Creek 2007C32 WACH062707T WACH 2858121 KILP
852007C32 Commons V Medical Building 2007C32 WACH062707T WACH 2860534 KILP
862007C32 Plaza 57 2007C32 WACH062707T WACH 2860304 MOOR
872007C32 8300 East Raintree Drive 2007C32 WACH062707T WACH 2859636 MOOR
892007C32 17000 Ventura Boulevard 2007C32 WACH062707T WACH 2860262 KILP
902007C32 Willimantic Plaza 2007C32 WACH062707T WACH 2859639 MOOR
912007C32 Imperial Towers 2007C32 WACH062707T WACH 2859655 KILP
922007C32 Cardiff Plaza Shopping Center 2007C32 WACH062707T WACH 9850536
932007C32 Medical Office Building - 50 Sewall Street 2007C32 WACH062707T WACH 2860276 W&ST
952007C32 7400 Apartments 2007C32 WACH062707T WACH 2859654 KILP
962007C32 Dutch Village 2007C32 WACH062707T WACH 2860415 MOOR
972007C32 Hampton Inn - Bennington 2007C32 WACH062707T WACH 2860310 KILP
1002007C32 Bunge North America 2007C32 WACH062707T WACH 2860296 MOOR
1012007C32 Shoppes at Pennington 2007C32 WACH062707T WACH 2859070 KILP
1032007C32 Galleria Shopping Center 2007C32 WACH062707T WACH 9850535
1052007C32 Mansion House Center Ground Lease20 2007C32 WACH062707T WACH 2859694 MOOR
1062007C32 Shoppes at Indian Trail 2007C32 WACH062707T WACH 2858945 MOOR
1082007C32 Village Square Apartments 2007C32 WACH062707T WACH 2859357 MOOR
1092007C32 Timmons Place 2007C32 WACH062707T WACH 2860283 KILP
1102007C32 1331 Gemini 2007C32 WACH062707T WACH 2859895 KILP
1112007C32 Village Pavilion 2007C32 WACH062707T WACH 2858683 MOOR
1122007C32 1515 West Morse Avenue Apartments 2007C32 WACH062707T WACH 2860544 KILP
1132007C32 5724-32 S Blackstone 2007C32 WACH062707T WACH 2860030 MOOR
1142007C32 Stanford Place II Apartments 2007C32 WACH062707T WACH 2859724 MOOR
1172007C32 Holiday Inn Express Heber City 2007C32 WACH062707T WACH 2859413 KILP
1192007C32 Timmons Square 2007C32 WACH062707T WACH 2860287 KILP
1212007C32 North Tucker Garage 2007C32 WACH062707T WACH 2860284 W&ST
1222007C32 SilverLeaf Suites 2007C32 WACH062707T WACH 2860558 KILP
1232007C32 Warehouse Terminal - Manitowac, WI 2007C32 WACH062707T WACH 2856730 KILP
1242007C32 701 Interstate 20 East 2007C32 WACH062707T WACH 2859801 MOOR
1252007C32 Ridge Road Shopping Center 2007C32 WACH062707T WACH 9850537
1262007C32 Office Max 2007C32 WACH062707T WACH 2857908 KILP
1272007C32 4717 North Winthrop 2007C32 WACH062707T WACH 2860273 MOOR
1282007C32 Paylow 2007C32 WACH062707T WACH 2860315 MOOR
1292007C32 Wiseway 2007C32 WACH062707T WACH 2860386 MOOR
1302007C32 Cole WAG Ozark MO 2007C32 WACH062707T WACH 2859056 KILP
1312007C32 Warehouse Terminal - Menominee, MI 2007C32 WACH062707T WACH 2859566 KILP
1332007C32 Cole Tractor Supply - Rutland, VT 2007C32 WACH062707T WACH 2858905 KILP
1342007C32 Cole Tractor Supply - Watertown, WI 2007C32 WACH062707T WACH 2858906 KILP
1352007C32 ArchivesOne PA 2007C32 WACH062707T WACH 2858897 MOOR
1382007C32 Ocean Rose Inn 2007C32 WACH062707T WACH 2859710 MOOR
1392007C32 ArchivesOne NC 2007C32 WACH062707T WACH 2860216 MOOR
1422007C32 ArchivesOne VT 2007C32 WACH062707T WACH 2860217 MOOR
Collateral ID Loan Amount DocType Exception Exception Description Notation Comment
- ------------- -------------- ------- --------- --------------------------- ----------------------------- ---------------
12007C32 414,000,000.00 ALNV 01 MISSING WACH TO BLANK
22007C32 283,850,000.00 NOTE 14 LOAN AMOUNT DOES NOT AGREE NOTE: $567,700,000.00 ; SCHD: SPLIT NOTE BEING
WITH SCHEDULE 283,850,000.00 SENT OVERNIGHT
22007C32 283,850,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
32007C32 221,250,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
42007C32 200,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
52007C32 140,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
62007C32 110,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
82007C32 95,000,000.00 ALNV 01 MISSING WACH TO BLANK
92007C32 92,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
112007C32 75,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
122007C32 70,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
132007C32 66,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
142007C32 64,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
162007C32 54,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
172007C32 47,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
192007C32 46,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
202007C32 44,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
212007C32 40,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
222007C32 38,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
232007C32 36,750,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
242007C32 36,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
252007C32 35,572,500.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
262007C32 35,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
272007C32 34,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
282007C32 33,700,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
302007C32 31,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
312007C32 30,175,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
322007C32 30,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
332007C32 29,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
342007C32 29,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
352007C32 28,620,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
362007C32 28,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
372007C32 27,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
382007C32 26,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
392007C32 26,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
412007C32 25,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
422007C32 23,850,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
432007C32 23,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
442007C32 22,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
452007C32 19,875,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
472007C32 18,700,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
482007C32 17,800,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
492007C32 17,650,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
502007C32 16,720,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
512007C32 16,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
522007C32 16,180,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
532007C32 15,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
542007C32 14,750,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
552007C32 14,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
562007C32 13,760,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
572007C32 13,530,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
582007C32 13,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
592007C32 13,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
602007C32 13,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
612007C32 13,056,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
622007C32 13,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
632007C32 13,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
642007C32 13,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
652007C32 12,720,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
662007C32 12,450,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
672007C32 12,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
682007C32 11,800,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
692007C32 11,600,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
702007C32 11,300,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
712007C32 11,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
722007C32 11,050,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
732007C32 11,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
742007C32 11,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
752007C32 10,820,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
762007C32 10,800,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
772007C32 10,700,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
782007C32 10,550,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
792007C32 10,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
802007C32 10,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
812007C32 10,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
832007C32 10,250,000.00 NOTE 46 LOAN REFERENCE SCHEDULE $10,250,000.00;
MISSING/INCORRECT ALLONGE $10,250,00.00
842007C32 10,050,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
852007C32 10,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
862007C32 9,250,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
872007C32 9,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
892007C32 8,800,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
902007C32 8,800,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
912007C32 8,080,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
922007C32 8,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
932007C32 8,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
952007C32 7,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
962007C32 7,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
972007C32 7,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1002007C32 6,262,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1012007C32 6,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1032007C32 6,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1052007C32 5,900,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1062007C32 5,650,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1082007C32 5,560,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1092007C32 5,350,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1102007C32 5,250,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1112007C32 5,000,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1122007C32 4,700,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1132007C32 4,600,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1142007C32 4,350,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1172007C32 4,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1192007C32 3,850,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1212007C32 3,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1222007C32 3,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1232007C32 3,500,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1242007C32 3,412,500.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1252007C32 3,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1262007C32 3,200,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1272007C32 3,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1282007C32 2,750,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1292007C32 2,750,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1302007C32 2,399,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1312007C32 2,400,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1332007C32 2,095,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1342007C32 1,994,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1352007C32 1,860,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1382007C32 1,571,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1392007C32 1,120,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
1422007C32 1,100,000.00 ALNV 94 OUT FOR EXECUTION WACH TO BLANK
COMMERCIAL EXCEPTION CODES
Wells Fargo Commercial Exception Codes
EX. CODE DESCRIPTION
--------------------- -------------------------------------------------------------------------------------------------------
01 Missing
02 Document is Copy
03 Doc is a Copy, but not Certified True and Correct"
04 Pages are Missing from Document
05 Damaged Document
06 Incorrect Form
07 Date is Incorrect
08 Loan Number does not agree with Schedule
09 Property Address does not agree with Schedule
10 Interest Rate does not agree with Schedule
11 Interest Rate (alpha & numeric) do not agree
12 Date of First Payment does not agree with Schedule
13 Date of Last Payment does not agree with Schedule
14 Loan Amount does not agree with Schedule
15 Loan Amount (alpha & numeric) do not agree
16 Monthly P&I does not agree with Schedule
17 P&I (alpha & numeric) do not agree
18 Mortgagor Name(s) does not agree with Schedule
19 Legal Description is Missing/Incorrect
20 Unrecorded Original
21 White-out / Corrections Not Initialed
22 Endorsement(s) is Missing/Incorrect
23 Notary, Acknowledgment, or Witness Information is Missing
24 Name is Missing/Incorrect
25 Signature(s) does not agree with Typed Name(s)
26 Signature is Missing
28 Signature Date is Missing
29 Title Insurance Coverage is Insufficient
31 Trustee Name is Missing/Incorrect
33 Case Number does not agree with Schedule
34 Commitment Number does not agree with Schedule
44 Schedule A is Incorrect
45 County Missing/Incorrect
46 Loan Reference Missing/Incorrect
47 Incomplete Information
52 Document Does Not Belong in File
59 Assumption Endorsement Missing
66 Rider Missing
68 Certified True Copy sent for Recording
69 Recorded Copy (Where the recording information and signature are both copies and not county certified)
70 Processing and or submitted for recording
90 Lost Note Affidavit in file
92 Document being created and or executed
94 Out for execution
96 Unrecorded Copy
97 ADDITIONAL DOCUMENTS IN FILE
98 Title Commitment Received
109 Rec'd ASUM need UCC amendment or new filing
111 Recorded document sent to be re-recorded
115 Processing and or submitted for recording to Issuer vendor
121 Recording Search and/or Confirmation of Filing
DOCTYPE DESCRIPTION ADDITIONAL COMMENTS
- ---------------- ----------------------------------------------------- -----------------------------------------------------
ACC1 NEW UCC1 ASUM FILING NEW COUNTY UCC NEEDED FOR ASSUMPTION
ACC3 AMEND/TERM FOR OLD BORR TERMINATION OF ORIGINAL BORROWER IN ASUM-COUNTY
ACS1 NEW UCS1 ASUM FILING NEW STATE UCC NEEDED FOR ASSUMPTION
ACS3 AMEND/TERM FOR OLD BORR TERMINATION OF ORIGINAL BORROWER IN ASUM-STATE
AFFD NAME AFFIDAVIT DOCUMENT THAT LISTS THE NAME(S) THAT THE BORROWER(S)
ARE ALTERNATIVELY KNOW AS
ALN (1-9) INTERVENING ALLONGE ADDITIONAL PAGE(S) OF THE NOTE THAT CONTAIN
INTERVENING ENDORSEMENT(S)
ALNV FINAL ALLONGE FINAL NOTE ENDORSEMENT
AMRT AMORTIZATION SCHEDULE
APPR APPRAISAL DOCUMENT THAT IS USED TO EVALUATE THE VALUE OF A
PARTICULAR PIECE OF PROPERTY; IT MAY CONTAIN MULTIPLE
PAGES AND/OR SECTIONS
ASL1 * ASSIGNMENT 1 OF ASSIGNMENT OF LEASES AND RENTS ALSO REFERRED TO AS THE ASSIGNMENT OF ASSIGNMENT 1 OF
LEASES AND RENTS; DOCUMENT TRANSFERS OWNERSHIP OF THE
MORTGAGE FROM ONE LENDER TO ANOTHER LENDER
ASL2 * ASSIGNMENT 2 OF ASSIGNMENT OF LEASES AND RENTS ALSO REFERRED TO AS THE ASSIGNMENT OF ASSIGNMENT 2 OF
LEASES AND RENTS; DOCUMENT TRANSFERS OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND RENTS FROM ONE LENDER TO
ANOTHER LENDER
ASL3 * ASSIGNMENT 3 OF ASSIGNMENT OF LEASES AND RENTS ALSO REFERRED TO AS THE ASSIGNMENT OF ASSIGNMENT 3 OF
LEASES AND RENTS; DOCUMENT TRANSFERS OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND RENTS FROM ONE LENDER TO
ANOTHER LENDER
ASL4 * ASSIGNMENT 4 OF ASSIGNMENT OF LEASES AND RENTS ALSO REFERRED TO AS THE ASSIGNMENT OF ASSIGNMENT 4 OF
LEASES AND RENTS; DOCUMENT TRANSFERS OWNERSHIP OF THE
ASSIGNMENT OF LEASES AND RENTS FROM ONE LENDER TO
ANOTHER LENDER
ASLQ ASSIGNMENT OF LIQUOR LICENSE
ASLR * ASSIGNMENT OF LEASES AND RENTS NAMED THE ASSIGNMENT OF LEASES AND RENTS; THIS
DOCUMENT SERVES TO TRANSFER ANY/ALL LEASES ASSOCIATED
WITH THE PROPERTY FROM THE BORROWER TO THE ORIGINAL
LENDER UNDER THE CONTRACTUAL CONDITIONS FOUND IN THE
DOCUMENT
ASLV * INVESTOR ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS ALSO REFERRED TO AS THE INVESTOR ASSIGNMENT OF
ASSIGNMENT OF LEASES AND RENTS; DOCUMENT TRANSFERS
OWNERSHIP OF THE ASSIGNMENT OF LEASES AND RENTS FROM
ONE LENDER TO ANOTHER LENDER; USUALLY IT ENDS IN
"WELLS FARGO or NORWEST BANK MINNESOTA, N.A., AS
TRUSTEE ..."
ASN1 * ASSIGNMENT 1 ALSO REFERRED TO AS THE ASSIGNMENT 1 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN2 * ASSIGNMENT 2 ALSO REFERRED TO AS THE ASSIGNMENT 2 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN3 * ASSIGNMENT 3 ALSO REFERRED TO AS THE ASSIGNMENT 3 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN4 * ASSIGNMENT 4 ALSO REFERRED TO AS THE ASSIGNMENT 4 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN5 * ASSIGNMENT 5 ALSO REFERRED TO AS THE ASSIGNMENT 5 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN6 * ASSIGNMENT 6 ALSO REFERRED TO AS THE ASSIGNMENT 6 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN7 * ASSIGNMENT 7 ALSO REFERRED TO AS THE ASSIGNMENT 7 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN8 * ASSIGNMENT 8 ALSO REFERRED TO AS THE ASSIGNMENT 8 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASN9 * ASSIGNMENT 9 ALSO REFERRED TO AS THE ASSIGNMENT 9 OF MORTGAGE;
DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER
ASNB * BLANKET ASSIGNMENT DOCUMENT TRANSFERS OWNERSHIP OF THE MORTGAGE FROM ONE
LENDER TO ANOTHER LENDER; AN ASSIGNMENT OF MORTGAGE
THAT IS USED TO TRANSFER OWNERSHIP OF MORE THAN ONE
INDIVIDUAL LOAN AT A TIME
ASNV * INVESTOR ASSIGNMENT ALSO REFERRED TO AS THE INVESTOR ASSIGNMENT OF
MORTGAGE; DOCUMENT TRANSFERS OWNERSHIP OF THE
MORTGAGE FROM ONE LENDER TO ANOTHER LENDER; USUALLY
IT ENDS IN "WELLS FARGO or NORWEST BANK MINNESOTA,
N.A., AS TRUSTEE ..."
ASPW ASSIGNMENT OF PERMITS & WARRANTIES
ASSE ASSET MANAGER AGREEMENT
ASUM ASSUMPTION AGREEMENT DOCUMENT TRANSFERS THE RIGHTS, TERMS, OR CONDITIONS
OF ANY / ALL DOCUMENTS IN THE FILE FROM ONE BORROWER
TO ANOTHER BORROWER
ATTY ATTORNEYS OPINION
BOFS BILL OF SALE
BUYD BUYDOWN AGREEMENT
CEM CONSOLIDATION AGREEMENT
CKLT LOAN FILE CHECKLIST
CNFS CERTIFICATE OF NON-FOREIGN STATUS
COFS CONTRACT OF SALE
COM1 ( --9)* COMBINATION ASSIGNMENT DOCUMENT ASSIGNING TWO OR MORE INTERVENING
ASSIGNMENTS IN ONE
COMV* COMBINATION FINAL ASSIGNMENT DOCUMENT ASSIGNING TWO OR MORE
DOCUMENTS WITH ONE
CONV CONVERSION AGREEMENT
COOP CO-OP A TYPE OF LOAN THAT HAS DIFFERENT REVIEW REQUIREMENTS
THAN NORMAL COMMERCIAL LOANS
CTRL CREDIT LEASE / CREDIT TENANT LEASE
DEE1 ADDITIONAL DEED
DEE2 2ND ADDITIONAL DEED
DEFS DEFEASANCE DOCUMENTS
ENVI ENVIRONMENTAL INDEMNITY
ENAS ENVIRONMENTAL ASSESSMENT ENVIRONMENTAL POLICY OR PHASE I ENVIRONMENTAL
ASSESSMENT
ESCR ESCROW AGREEMENT
ESTO ESTOPPEL LETTER/AGREEMENT FRANCHISOR OR LESSOR
FILE LOAN FILE REFERS TO THE FILE FOLDER OR ALL OF THE INDIVIDUAL
DOCUMENTS ASSOCIATED WITH A INDIVIDUAL LOAN
FRAN FRANCHISE AGREEMENT (OR TARGET RESERVATION AGREEMENT FOR CONSTRUCTION
LOAN)
GRND GROUND LEASE
GUAR GUARANTY AGREEMENT
HAZA HAZARD POLICY
ICAG INTERCREDITOR AGREEMENT
IRCA INTEREST RATE CAP AGREEMENT
LAGR MORTGAGE LOAN AGREEMENT
LCRD LETTER OF CREDIT
LEAS LEASE DOCUMENT LEASE DOCUMENT OTHER THAN THE ASSIGNMENT OF LEASES
AND RENTS
LEGL LEGAL DESCRIPTION DOCUMENT
MERG MERGER DOCUMENT
MODF MODIFICATION AGREEMENT
MORT MORTGAGE/DEED OF TRUST
NOTA NOTICE OF ASSIGNMENT
NOT1 ADD'L NOTE
NOT2 2ND ADDITIONAL NOTE
NOTE MTG NOTE
OMNI/AGRE ASSIGNMENT OF AGREEMENTS ALSO KNOWN AS THE OMNIBUS ASSIGNMENT; DOCUMENT SERVES
TO TRANSFER ANY ADDITIONAL RIGHTS, SERVICES,
PROPERTY, AND OTHER MISCELLANEOUS RIGHTS (THAT ARE
NOT COVERED BY THE MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, OR UCC'S) FROM THE BORROWER TO THE ORIGINAL
LENDER
PMI PRIVATE MORTGAGE INSURANCE
RECG RECOGINITION AGREEMENT
QCLD QUIT CLAIM DEED
RECG RECOGINITION AGREEMENT
RECP RECEIPT & CLOSING CERTIFICATE
RIDR RIDERS
SCER STOCK CERTIFICATE DOCUMENT THAT IS USUALLY ASSOCIATED WITH CO-OP LOANS
SCHD POOL SCHEDULE
SECI * SECURITY INSTRUMENT
SINS SITE INSPECTION
SPOW STOCK POWER DOCUMENT THAT IS USUALLY ASSOCIATED WITH CO-OP LOANS
SUBD SUBORDINATION AGREEMENT
SURV SURVEY
SUR1 FINAL SURVEY AS/BUILT (FOR CONSTRUCTION LOANS)
TCMT TITLE COMMITMENT
TENT TENT ESTOPPEL
TPOL TITLE POLICY
UCC1 * UCC-1 (COUNTY) COUNTY FILING TO ORIGINAL LENDER
UC31 (---9)* INTERVENING UCC-3 (COUNTY) COUNTY FILING - INTERVENING LENDERS
UCC3 * UCC-3 (COUNTY) COUNTY FILING TO WELLS FARGO OR TRUSTEE
UCS1 * UCC-1 (STATE) STATE FILING TO ORIGINAL LENDER
US31 (---9)* INTERVENING UCC-3 (STATE) STATE FILING - INTERVENING LENDERS
UCS3 * UCC-3 (STATE) STATE FILING TO WELLS FARGO OR TRUSTEE
WDED WARRANTY DEED
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
Wachovia Bank, National Association
301 South College Street
One Wachovia Center
Charlotte, North Carolina 28288
Artesia Mortgage Capital Corporation
1180 NW Maple Street, Suite 202
Issaquah, Washington 98027
Wachovia Commercial Mortgage Securities, Inc.
301 South College Street
One Wachovia Center
Charlotte, North Carolina 28288
Attention: Barry Reiner
Wachovia Bank, National Association
NC 1075
8739 Research Drive - URP4
Charlotte, North Carolina 28262-1075
Attention: Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
CWCapital Asset Management LLC
700 Twelfth Street, N.W., Suite 700
Washington, D.C. 20005
Attention: David Iannarone
Re: Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Ladies and Gentlemen:
(a) Wells Fargo Bank, N.A., as Trustee, hereby certifies to the
above referenced parties that, with respect to each Mortgage Loan (and with
respect to a Companion Loan, only those items required pursuant to the
definition of "Mortgage File") listed in the Mortgage Loan Schedule, except as
specifically identified in the schedule of exceptions annexed thereto, (i)
without regard to the proviso in the definition of "Mortgage File," all
documents specified in clauses (i), (ii), (iv)(a), (v) and (vii), and to the
extent provided in the related Mortgage File and actually known by a Responsible
Officer of the Trustee to be required, clauses (iii), (iv)(b), (iv)(c), (vi),
(viii) and (ix) through (xv) of the definition of "Mortgage File" are in its
possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage Loan Seller constituting the related Mortgage File have been
reviewed by it and appear regular on their face and appear to relate to such
Mortgage Loan, (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with respect to the items specified in clauses (v) and (vi) (c) of
the definition of "Mortgage Loan Schedule" is correct and (iv) solely with
respect to the Companion Loans, all documents specified in clause (xiii) of the
definition of Mortgage File are in its possession. Further, with respect to the
documents described in clause (viii) of the definition of Mortgage File, the
Trustee may assume, for purposes of the certification delivered in Section
2.02(b) of the Pooling and Servicing Agreement and for purposes of determining
(subject to the proviso at the end of this sentence) where to file UCC Financing
Statements, that the related Mortgage File should include one state level UCC
Financing Statement filing in the state of incorporation of the Mortgagor for
each Mortgaged Property (or with respect to any Mortgage Loan that has two or
more Mortgagors, for each Mortgagor); provided, however, that to the extent the
Trustee has actual knowledge or is notified of any fixture or real property UCC
Financing Statements filed in the county of the state where the related
Mortgaged Property is located, the Trustee shall file an assignment to the Trust
Fund 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 Fund pursuant to
Section 2.01(d) of the Pooling and Servicing Agreement will be delivered by the
related Mortgage Loan Seller to the Trustee on the new national forms, in
recordable form and completed pursuant to Revised Article IX of the UCC. The
Trustee will submit such UCC Financing Statements for filing in the state of
incorporation of the related Mortgagor as so indicated on the documents
provided.
None of the Trustee, the Master Servicer, the Special Servicer or
any Custodian is under any duty or obligation to inspect, review or examine any
of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face. Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them under the Pooling and Servicing
Agreement.
Respectfully,
________________________________
Name:___________________________
Title:
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Wells Fargo Bank, N.A.
1055 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attn: Corporate Trust Services - Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain pooling and servicing agreement, dated as of June
1, 2007 (the "Pooling and Servicing Agreement"), by and among Wachovia
Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, and Wells Fargo Bank, N.A., as Trustee, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
___________________________________
___________________________________
___________________________________
Attn: _____________________________
Phone:_____________________________
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 Master Servicer hereby certifies that all amounts
received in connection with the Mortgage Loan that are
required to be credited to the Certificate Account
pursuant to the Pooling and Servicing Agreement have
been or will be so credited.
_____ 2. 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.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: _______________________________________
Name:__________________________________
Title:_________________________________
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Wells Fargo Bank, N.A.
1055 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attn: Corporate Trust Services - Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain pooling and servicing agreement, dated as of June
1, 2007 (the "Pooling and Servicing Agreement"), by and among Wachovia
Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, and Wells Fargo Bank, N.A., as Trustee, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
_____________________________________
_____________________________________
_____________________________________
Attn:________________________________
Phone:_______________________________
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. The Mortgage Loan is being foreclosed.
_____ 2. 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 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.
CWCAPITAL ASSET MANAGEMENT LLC,
as Special Servicer
By: ___________________________________
Name:______________________________
Title:_____________________________
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" shall mean the revenue derived from the use and
operation of a Mortgaged Property less 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. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining vacancy for the "revenue" component of Net Cash Flow
for each Rental Property, the Special Servicer shall rely on the most recent
rent roll supplied by the related borrower and where the actual vacancy shown
thereon and the market vacancy is less than 1%, the Special Servicer shall
assume a 1% vacancy in determining revenue from rents, except that in the case
of certain anchored shopping centers, space occupied by anchor or single tenants
or other large tenants shall be disregarded in performing the vacancy adjustment
due to the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In determining the "expense" component of Net Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.1% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to single tenant properties, where fees as low as
3% of effective gross receipts shall be assumed), (c) assumptions shall be made
with respect to reserves for leasing commission, tenant improvement expenses and
capital expenditures and (d) expenses shall be assumed to include annual
replacement reserves. In addition, in some instances, the Special Servicer may
recharacterize as capital expenditures those items reported by borrowers as
operating expenses (thus increasing "net cash flow") where determined
appropriate.
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of June 28, 2007 (the "Closing Date")
of $_____________ evidencing a __% interest in the Class to which it belongs.
The Certificates were issued pursuant to the pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 2007, among
Wachovia Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, and Wells Fargo Bank, N.A., as Trustee. All terms used herein
and not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
___________________________________
(Transferor)
By: _______________________________
Name:___________________________
Title:__________________________
EXHIBIT F-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of June 28, 2007 (the "Closing Date")
of $_____________ evidencing a __% interest in the Class to which it belongs.
The Certificates were issued pursuant to the pooling and servicing agreement(the
"Pooling and Servicing Agreement"), dated as of June 1, 2007, among Wachovia
Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, and Wells Fargo Bank, N.A., as Trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act") and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. In the case of a Class A-4FL, Class A-MFL, Class G, Class H,
Class J or Class K Certificate, the Transferee either (A) is not an
"employee benefit plan" subject to Title I of ERISA or a "plan" described
by Section 4975(e)(1) of the Code or any other retirement plan or other
employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the
Code, or any entity deemed to hold plan assets of the foregoing by reason
of a plan's investment in such entity (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and satisfies all the requirements
of the Exemptions as in effect at the time of such transfer and, in the
case of a Class A-4FL or Class A-MFL Certificate, the Plan fiduciary is a
qualified professional asset manager (as defined in PTE 84-14), an
in-house asset manager (as defined in PTE 96-23), or a Plan fiduciary with
total assets under management of at least $100 million at the time the
Certificate is acquired or (2) is an insurance company general account
that is eligible for, and satisfies all of the requirements of, Sections I
and III of Department of Labor Prohibited Transaction Class Exemption
95-60 ("PTE 95-60").
In the case of a Class A-4M or Class A-MM Certificate, the
Transferee either (A) is not an "employee benefit plan" subject to Title I
of ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement
subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA and the Code, or any entity deemed to hold
plan assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) (1) qualifies as an accredited investor as
defined in Rule 501(a)(1) of Regulation D under the Securities Act and
satisfies all the requirements of the Exemptions as in effect at the time
of such transfer and at least one of Prohibited Transaction Class
Exemption 84-14, 90-1, 91-38, 95-60 or 96-23 applies to the transferee's
acquisition and holding of the Certificate or (2) is an insurance company
general account that is eligible for, and satisfies all of the
requirements of, Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class A-4MS, Class A-MMS, Class L, Class M, Class
N, Class O, Class P, Class Q or Class S Certificate, the Transferee either
(A) is not an "employee benefit plan" subject to Title I of ERISA or a
"plan" described by Section 4975(e)(1) of the Code or any other retirement
plan or other employee benefit plan or arrangement subject to any federal,
state or local law materially similar to the foregoing provisions of ERISA
and the Code, or any entity deemed to hold plan assets of the foregoing by
reason of a plan's investment in such entity (each, a "Plan") or (B) is an
insurance company general account which is eligible for, and satisfies all
of the requirements for, exemptive relief under Sections I and III of
Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTE
95-60").
In the case of a Class R-I, Class R-II and Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA
or a "plan" subject to Section 4975 of the Code or any other retirement
plan or other employee benefit plan or arrangement subject to any federal,
state, local, non-U.S. or other law substantively similar to the foregoing
provisions of ERISA or the Code, or any Person directly or indirectly
acquiring such Certificate for, on behalf of or with any assets of any
such plan (each, a "Plan").
3. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
4. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear legends substantially to the
following effect (provided that the Class A-4M, Class A-MM, Class A-4FL,
Class A-MFL, Class G, Class H, Class J and Class K Certificates will bear
a legend substantially to the effect of the following first paragraph
only):
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO
ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE
CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON
OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN
INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL
OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL
NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class R-I, Class R-II or Class Z Certificates]: NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(e)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR
ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A
PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO
ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
6. Check one of the following:
[_] The Transferee 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 Transferee 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 Transferred
Certificate. The Transferee has attached hereto [(i) a duly executed IRS
Form W-8BEN (or successor form), which identifies such Transferee as the
beneficial owner of the Transferred Certificate and states that such
Transferee is not a U.S. Person, (ii) two duly executed copies of IRS Form
W-8IMY (with all the appropriate attachments), or (iii)] two duly executed
copies of IRS Form W-8ECI (or successor form), which identify such
Transferee as the beneficial owner of the Transferred Certificate and
state that interest and original issue discount on the Transferred
Certificate and Permitted Investments is, or is expected to be,
effectively connected with a U.S. trade or business. The Transferee agrees
to provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS Form
W-8IMY or]* IRS Form W-8ECI, as the case may be, any applicable successor
IRS forms, or such other certifications as the Certificate Registrar may
reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the
occurrence of any event requiring a change in the most recent IRS form of
certification furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States, any State thereof or the District
of Columbia unless in the case of a partnership, Treasury Regulations are
adopted that provide otherwise, an estate whose income is includable in gross
income for United States federal income tax purposes regardless of its source or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust, and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
Very truly yours,
____________________________________
(Transferee)
By:_________________________________
Name:_______________________________
Title:______________________________
ANNEX 1 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and Wells Fargo Bank, N.A., as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificate") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A") because (i) the Transferee owned and/or invested on a
discretionary basis $____________ / _____________ in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) [Transferee must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
is a dealer, and, in that case, Transferee must own and/or invest on, a
discretionary basis at least $10,000,000 in securities.] and (ii) the
Transferee satisfies the criteria in the category marked below.
[_] Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), business
trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
[_] Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
[_] Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. savings and loan association, and not more than
18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.
[_] Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
[_] Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
[_] State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
[_] ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974, as amended.
[_] Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
[_] Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to or subscription by the
Transferee, if the Transferee is a dealer, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee used the cost of such securities to the Transferee, unless the
Transferee reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect
to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with
generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Transferee's direction. However, such
securities were not included if the Transferee is a majority-owned,
consolidated subsidiary of another enterprise and the Transferee is not
itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the parties to which this certification is being made
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule
144A.
________ ________ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificate will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
Print Name of Transferee
By: ____________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
ANNEX 2 TO EXHIBIT F-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and Wells Fargo Bank, N.A., as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificate") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificate (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000
in securities (other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family
of Investment Companies, as the case may be, reports its securities
holdings in its financial statements on the basis of their market value,
and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were
valued at market.
[_] The Transferee owned and/or invested on a discretionary basis
$___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
[_] The Transferee is part of a Family of Investment Companies which
owned in the aggregate $___________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
In the case of a Class R-I, Class R-II or Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA or a
"plan" described by Section 4975(e)(1) of the Code or any other retirement plan
or other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan").
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales
to the Transferee will be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing the
Yes No Transferred Certificate only for
the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
Print Name of Transferee or Adviser
By: __________________________________
Name:_____________________________
Title:____________________________
EXHIBIT F-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of June 28, 2007 (the "Closing Date")
of $_____________ evidencing a __% interest in the Class to which it belongs.
The Certificates were issued pursuant to the pooling and servicing agreement(the
"Pooling and Servicing Agreement"), dated as of June 1, 2007, among Wachovia
Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, and Wells Fargo Bank, N.A., as Trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the
Depositor nor the Trustee or the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) the Certificates may not be
resold or transferred unless they are (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received either (A) certifications from both the transferor
and the transferee (substantially in the forms attached to the Pooling and
Servicing Agreement) setting forth the facts surrounding the transfer or
(B) an opinion of counsel satisfactory to the Certificate Registrar with
respect to the availability of such exemption (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar
in their respective capacities as such), together with copies of the
certification(s) from the Transferor and/or Transferee setting forth the
facts surrounding the transfer upon which such opinion is based. Any
holder of a Certificate desiring to effect such a transfer shall, and upon
acquisition of such Certificate shall be deemed to have agreed to,
indemnify the Master Servicer, the Special Servicer, Trustee, the
Certificate Registrar and the Depositor 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.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear legends substantially to the
following effect (provided that the Class A-4M, Class A-MM, Class A-4FL,
Class A-MFL, Class G, Class H, Class J and Class K Certificates will bear
a legend substantially to the effect of the following first paragraph
only):
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO
ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN"
DESCRIBED BY SECTION 4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA
AND THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY
REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS
AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES
ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL
NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class R-I, Class R-II and Class Z Certificates]: NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(e)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR
ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A
PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO
ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement, and (d) all related matters, that it has
requested.
6. The Transferee has been furnished a copy of the applicable
private placement memorandum (the "Private Placement Memorandum"), dated
June 22, 2007 and has read such Private Placement Memorandum.
7. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge
and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and
can afford a complete loss of such investment.
8. In the case of the Class A-4FL, Class A-MFL, Class G, Class H,
Class J or Class K Certificates, the Transferee either (A) is not an
"employee benefit plan" subject to Title I of ERISA or a "plan" described
by Section 4975(e)(1) of the Code or any other retirement plan or other
employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the
Code, or any entity deemed to hold plan assets of the foregoing by reason
of a plan's investment in such entity (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and satisfies all the requirements
of the Exemptions as in effect at the time of such transfer and, in the
case of a Class A-4FL or Class A-MFL Certificate, the Plan fiduciary is a
qualified professional asset manager (as defined in PTE 84-14), an
in-house asset manager (as defined in PTE 96-23), or a Plan fiduciary with
total assets under management of at least $100 million at the time the
Certificate is acquired or (2) is an insurance company general account
that is eligible for, and satisfies all of the requirements for, Sections
I and III of Department of Labor Prohibited Transaction Class Exemption
95-60 ("PTE 95-60").
9. In the case of a Class A-4M or Class A-MM Certificate, the
Transferee either (A) is not an "employee benefit plan" subject to Title I
of ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement
subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA and the Code, or any entity deemed to hold
plan assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) (1) qualifies as an accredited investor as
defined in Rule 501(a)(1) of Regulation D under the Securities Act and
satisfies all the requirements of the Exemptions as in effect at the time
of such transfer and at least one of Prohibited Transaction Class
Exemption 84-14, 90-1, 91-38, 95-60 or 96-23 applies to the transferee's
acquisition and holding of the Certificate or (2) is an insurance company
general account that is eligible for, and satisfies all of the
requirements of, Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60").
10. In the case of Class A-4MS, Class A-MMS, Class L, Class M, Class
N, Class O, Class P, Class Q or Class S Certificates, the Transferee
either (A) is not an "employee benefit plan" subject to Title I of ERISA
or a "plan" described by Section 4975(e)(1) of the Code, or any other
retirement plan or other employee benefit plan or arrangement subject to
any federal, state or local law materially similar to the foregoing
provisions of ERISA and the Code, or any entity deemed to hold plan assets
of the foregoing by reason of a plan's investment in such entity (each, a
"Plan") or (B) is an insurance company general account which is eligible
for, and satisfies all of the requirements for, exemptive relief under
Sections I and III of Department of Labor Prohibited Transaction Class
Exemption ("PTE 95-60").
In the case of a Class R-I, Class R-II, and Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA
or a "plan" subject to Section 4975 of the Code or any other retirement
plan or other employee benefit plan or arrangement subject to any federal,
state, local, non U.S. or other law substantively similar to the foregoing
provisions of ERISA or the Code, or any Person directly or indirectly
acquiring such Certificate for, on behalf of or with any assets of any
such plan (each a "Plan").
11. Check one of the following:
[_] The Transferee is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] (1)The Transferee 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 Transferred Certificate. The Transferee has attached
hereto [(i) a duly executed IRS Form W-8BEN (or successor form),
which identifies such Transferee as the beneficial owner of the
Transferred Certificate and states that such Transferee is not a
U.S. Person, (ii) two duly executed copies of IRS Form W-8IMY (with
all the appropriate attachments), or (iii)]* two duly executed
copies of IRS Form W-8ECI (or successor form), which identify such
Transferee as the beneficial owner of the Transferred Certificate
and state that interest and original issue discount on the
Transferred Certificate and Permitted Investments is, or is expected
to be, effectively connected with a U.S. trade or business. The
Transferee agrees to provide to the Certificate Registrar updated
[IRS Form W-8BEN, IRS Form W-8IMY or]* IRS Form W-8ECI, as the case
may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably request,
on or before the date that any such IRS form or certification
expires or becomes obsolete, or promptly after the occurrence of any
event requiring a change in the most recent IRS form of
certification furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States, any State thereof or the District
of Columbia unless in the case of a partnership, Treasury Regulations are
adopted that provide otherwise, an estate whose income is includable in gross
income for United States federal income tax purposes regardless of its source or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust, and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a)(30) of the Code.
- ---------------------------------
(1) [Does not apply to Class R-I or Class R-II Certificates.]
* Delete for Class R-I and Class R-II Certificates.
Very truly yours,
_______________________________________
(Transferee)
By: ___________________________________
Name:______________________________
Title:_____________________________
EXHIBIT F-4
FORM OF TRANSFEREE CERTIFICATE
FOR REGULATION S TRANSFERS
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Service Group
Wachovia Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
[principal balance] [notional amount] as of June 28, 2007 (the "Closing Date")
of $_____________ evidencing a __% interest in the Class Certificates. The
Certificates were issued pursuant to the pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of June 1, 2007, among Wachovia
Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank, National
Association, as Master Servicer, CWCapital Asset Management LLC, as Special
Servicer, and Wells Fargo Bank, N.A., as Trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is not acquiring the Transferred Certificate in
any manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the
Depositor nor the Trustee nor the Certificate Registrar is obligated so to
register or qualify the Certificates and (c) the Certificates may not be
resold or transferred unless they are (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received either (A) certifications from both the transferor
and the transferee (substantially in the forms attached to the Pooling and
Servicing Agreement) setting forth the facts surrounding the transfer or
(B) an opinion of counsel satisfactory to the Certificate Registrar with
respect to the availability of such exemption (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
in their respective capacities as such), together with copies of the
certification(s) from the Transferor and/or Transferee setting forth the
facts surrounding the transfer upon which such opinion is based. Any
holder of a Certificate desiring to effect such a transfer shall, and upon
acquisition of such Certificate shall be deemed to have agreed to,
indemnify the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and the Depositor 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.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear a legend substantially to the
following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Certificates and distributions thereon, (c) the
Pooling and Servicing Agreement, and (d) all related matters, that it has
requested.
6. The Transferee has been furnished a copy of the Private Placement
Memorandum, dated June 22, 2007 and has read such Private Placement
Memorandum.
7. The offer of the Certificates was not made to a person in the
United States. 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. The transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
8. Check one of the following:*
______ At the time the buy order was originated, the Transferee was
outside the United States.
______ The transaction was executed in, on or through the facilities
of a designated offshore securities market and the Transferee does
not know that the transaction was pre-arranged with a buyer in the
United States.
* These two provisions come from the definition of "offshore
transaction" in Regulation S.
9. In the case of a Class L, Class M, Class N, Class O, Class P,
Class Q or Class S Certificate, the Transferee either (A) is not an
"employee benefit plan" subject to ERISA or a "plan" subject to Section
4975 of the Code or any other retirement plan or other employee benefit
plan or arrangement subject to any federal, state, local, non-U.S. or
other law substantively similar to the foregoing provisions of ERISA or
the Code, or any Person acting directly or indirectly for, on behalf of,
or with any assets of the foregoing by (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and satisfies all the requirements
of the Exemptions as in effect at the time of such transfer or (2) is an
insurance company general account that is eligible for, and satisfies all
of the requirements for, Sections I and III of Department of Labor
Prohibited Transaction Class Exemption 95-60 ("PTE 95-60").
10. The Transferee 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
Transferred Certificate. The Transferee has attached hereto (i) a duly
executed IRS Form W-8BEN (or successor form), which identifies such
Transferee as the beneficial owner of the Transferred Certificate and
states that such Transferee is not a U.S. Person, (ii) two duly executed
copies of IRS Form W-8IMY (with all the appropriate attachments) or (iii)
two duly executed copies of IRS Form W-8ECI (or successor form), which
identify such Transferee as the beneficial owner of the Transferred
Certificate and state that interest and original issue discount on the
Transferred Certificate and Permitted Investments is, or is expected to
be, effectively connected with a U.S. trade or business. The Transferee
agrees to provide to the Certificate Registrar updated IRS Form W-8BEN,
IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate
Registrar may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly after the
occurrence of any event requiring a change in the most recent IRS form of
certification furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of, the United States, any State thereof or the District
of Columbia unless in the case of a partnership, Treasury Regulations are
adopted that provide otherwise, an estate whose income is includable in gross
income for United States federal income tax purposes regardless of its source or
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust, and one or more U.S. Persons
have the authority to control all substantial decisions of the trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as U.S. Persons),
all within the meaning of Section 7701(a)(30) of the Code.
Very truly yours,
_____________________________________
(Transferor)
By:__________________________________
Name:_____________________________
Title:____________________________
EXHIBIT F-5
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM
DOMESTIC GLOBAL CERTIFICATE TO REGULATION S
GLOBAL CERTIFICATE DURING THE RESTRICTED PERIOD
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services--Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32, Class [__] Certificate
Transfer of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32, Class [__]
Certificate
Ladies and Gentlemen:
Reference is hereby made to the pooling and servicing agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Wachovia Mortgage Commercial Securities, Inc., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, and Wells Fargo Bank, N.A., as Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[__________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. _____________) with the Depository
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (ISIN No. _____________) through the Depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
1. the offer of the Certificates was not made to a person in the
United States,
- --------------------
* Select appropriate depository.
[2. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the transferee was outside the United States,]**
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States,]**
3. no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable, and
4. the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated:______________ __, _____
- -------------------------
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT F-6
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM DOMESTIC
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services--Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Re: Transfer of the Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32, Class [__]
Certificate
Ladies and Gentleman:
Reference is hereby made to the pooling and servicing agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), by and among
Wachovia Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, and Wells Fargo Bank, N.A., as Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $[____________] aggregate Certificate
Principal Amount of Certificates (the "Certificates") which are held in the form
of the Domestic Global Certificate (CUSIP No. ________) with the Depository in
the name of [insert name of Transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (ISIN No. __________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
1. the offer of the Certificates was not made to a person in the
United States,
[2. at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United
States,]*
[2. the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor nor any
person action on its behalf knows that the transaction was prearranged
with a buyer in the United States,]*
3. no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable,
and
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
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 Master Servicer, the Special
Servicer and the Trustee.
[Insert Name of Transferor]
By: _______________________________
Name:
Title:
________ __, ____
- --------------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT G
FORM OF TRANSFEREE CERTIFICATE
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") having an initial [principal balance] [notional amount] as of June
28, 2007 (the "Closing Date") of $_____________ evidencing a __% interest in the
Classes to which they belong. The Certificates were issued pursuant to a pooling
and servicing agreement, dated as of June 1, 2007 (the "Pooling and Servicing
Agreement"), Wachovia Commercial Mortgage Securities, Inc., as Depositor,
Wachovia Bank, National Association, as Master Servicer, CWCapital Asset
Management LLC, as Special Servicer and Wells Fargo Bank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you that:
In the case of a Class A-4FL, Class A-MFL, Class G, Class H, Class J
or Class K Certificate, the Transferee either (A) is not an "employee benefit
plan" subject to Title I of ERISA or a "plan" described by Section 4975(e)(1) of
the Code or any other retirement plan or other employee benefit plan or
arrangement subject to any federal, state or local law materially similar to the
foregoing provisions of ERISA and the Code, or any entity deemed to hold plan
assets of the foregoing by reason of a plan's investment in such entity (each, a
"Plan") or (B) (1) qualifies as an accredited investor as defined in Rule
501(a)(1) of Regulation D under the Securities Act and satisfies all the
requirements of the Exemptions as in effect at the time of such transfer and, in
the case of a Class A-4FL or Class A-MFL Certificate, the Plan fiduciary is a
qualified professional asset manager (as defined in PTE 84-14), an in-house
asset manager (as defined in PTE 96-23), or a Plan fiduciary with total assets
under management of at least $100 million at the time the Certificate is
acquired or (2) is an insurance company general account that is eligible for,
and satisfies all of the requirements for, Sections I and III of Department of
Labor Prohibited Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class A-4M or Class A-MM Certificate, the
Transferee either (A) is not an "employee benefit plan" subject to Title I of
ERISA or a "plan" described by Section 4975(e)(1) of the Code or any other
retirement plan or other employee benefit plan or arrangement subject to any
federal, state or local law materially similar to the foregoing provisions of
ERISA and the Code, or any entity deemed to hold plan assets of the foregoing by
reason of a plan's investment in such entity (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and satisfies all the requirements of the Exemptions as
in effect at the time of such transfer and at least one of Prohibited
Transaction Class Exemption 84-14, 90-1, 91-38, 95-60 or 96-23 applies to the
transferee's acquisition and holding of the Certificate or (2) is an insurance
company general account that is eligible for, and satisfies all of the
requirements of, Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class A-4MS, Class A-MMS, Class L, Class M, Class
N, Class O, Class P, Class Q or Class S Certificate, the Transferee either (A)
is not an "employee benefit plan" subject to Title I of ERISA or a "plan"
described by Section 4975(e)(1) of the Code, or any other retirement plan or
other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") or (B) is an insurance company
general account which is eligible for, and satisfies all of the requirements
for, exemptive relief under Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60").
In the case of a Class R-I, Class R-II or Class Z Certificate, the
Transferee is not an "employee benefit plan" subject to Title I of ERISA or a
"plan" described by Section 4975(e)(1) of the Code or any other retirement plan
or other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan").
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the date first written above.
____________________________________________
[Name of Transferee]
By: ________________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF [________________] )
) ss.:
COUNTY OF [________________] )
[NAME OF OFFICER], being first duly sworn, deposes, and represents
and warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"),
a corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the Wachovia Commercial
Mortgage Securities, Inc., Commercial Mortgage Pass-Through Certificates,
Series 2007-C32, Class [R-I] [R-II] evidencing a ___% Interest in the
Class to which its belongs (the "Class [R-I] [R-II]"). Capitalized terms
used but not defined herein have the meanings assigned to such terms in
the pooling and servicing agreement, dated as of June 1, 2007 (the
"Pooling and Servicing Agreement") among Wachovia Commercial Mortgage
Securities, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, CWCapital Asset Management LLC, as Special Servicer, and
Wells Fargo Bank, N.A., as Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
________, _______ and (ii) is acquiring the Class [R-I] [R-II]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit in substantially the same form as this
affidavit. A "Permitted Transferee" is any person other than a
Disqualified Organization, a Plan, a Disqualified Non-United States
Person, a partnership any partner of which, directly or indirectly (except
through a U.S. corporation), is a Disqualified Non-United States Person or
a United States Person with respect to whom income on the Class
[R-I][R-II] Certificate is allocable to a foreign permanent establishment
or fixed base, within the meaning of an applicable income tax treaty, of
such Person or any other United States Person. For this purpose, a
"Disqualified Organization" means any of the following: (i) the United
States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities
are subject to tax and, except for FHLMC, a majority of its board of
directors is not selected by any such governmental unit), (ii) a foreign
government, international organization, or any agency or instrumentality
of either of the foregoing, (iii) any organization (except certain
farmers' cooperatives described in Section 521 of the Internal Revenue
Code of 1986, as amended (the "Code")) which is exempt from the tax
imposed by Chapter 1 of the Code (unless such organization is subject to
the tax imposed by Section 511 of the Code on unrelated business taxable
income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code or (v) any other Person so designated by the
Paying Agent or the Certificate Registrar based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class [R-I] [R-II]
Certificate by such Person may cause the Trust Fund 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 Class [R-I] [R-II] 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.
3. A "Disqualified Non-United States Person" is any Person (i) who
is not a United States Person and who holds the Class[R-I] [R-II]
Certificate in connection with the conduct of a trade or business within
the United States and has furnished the transferor and the Certificate
Registrar with an effective IRS Form W-8ECI (or successor form) or that
has delivered to both the transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that the
transfer of the Class [R-I] [R-II] Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder
and that such transfer of the Class [R-I] [R-II] Certificate will not be
disregarded for federal income tax purposes or (ii) who is a United States
Person with respect to whom income on the Class [R-I] [R-II] Certificate
is allocable to a foreign permanent establishment or fixed base (within
the meaning of an applicable income tax treaty) of such Person or any
other United States Person. A "United States Person" is a citizen or
resident of the United States, a corporation or partnership (including an
entity treated as a corporation or partnership for federal income tax
purposes) created or organized in, or under the laws of the United States,
any State thereof or the District of Columbia unless, in the case of a
partnership, Treasury Regulations are adopted that provide otherwise, an
estate whose income is includable in gross income for United States
federal income tax purposes regardless of its source, or a trust if a
court within the United States is able to exercise primary supervision
over the administration of the trust and one or more United States Persons
have the authority to control all substantial decisions of the trust, all
within the meaning of Section 7701(a)(30) of the Code.
4. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I] [R-II] Certificates to Disqualified
Organizations under the Code that applies to all transfers of the Class
[R-I] [R-II] Certificates after March 31, 1988; (ii) that such tax would
be on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a Disqualified
Organization Transferee, on the agent; (iii) that the person otherwise
liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is
not a Disqualified Organization and, at the time of transfer, such person
does not have actual knowledge that the affidavit is false; and (iv) that
the Class [R-I] [R-II] Certificates may be "non-economic residual
interests" within the meaning of Treasury regulation section
1.860E-1(c)(2) and that the transferor of a "non-economic residual
interest" will remain liable for any taxes due with respect to the income
on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
5. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I] [R-II] Certificates if at any time during
the taxable year of the pass-through entity a non-Permitted Transferee is
the record holder of an interest in such entity. For this purpose, a "pass
through entity" includes a regulated investment company, a real estate
investment trust or common trust fund, a partnership, trust or estate, and
certain cooperatives.
6. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I] [R-II] Certificate unless the
transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
7. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I] [R-II]
Certificates will only be owned, directly or indirectly, by Permitted
Transferees.
8. That the Owner's taxpayer identification number is _____________.
9. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I] [R-II] Certificates and the provisions of Section
5.02 of the Pooling and Servicing Agreement under which the Class [R-I]
[R-II] Certificates were issued (and, in particular, the Owner is aware
that such Section authorizes the Paying Agent to deliver payments to a
person other than the Owner and negotiate a mandatory sale by the Paying
Agent in the event that the Owner holds such Certificate in violation of
Section 5.02); and that the Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
10. That the Owner is not acquiring and will not transfer the Class
[R-I] [R-II] Certificates in order to impede the assessment or collection
of any tax.
11. That the Owner has historically paid its debts as they have come
due, intends to continue to pay its debts as they come due in the future,
and anticipates that it will, so long as it holds any of the Class [R-I]
[R-II] Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class [R-I] [R-II] Certificates.
12. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds
any of the Class [R-I] [R-II] Certificates.
13. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the Person from whom it acquired the
Class [R-I] [R-II] Certificates that the Owner intends to pay taxes
associated with holding the Class [R-I] [R-II] Certificates as they become
due, fully understanding that it may incur tax liabilities in excess of
any cash flows generated by the Class [R-I] [R-II] Certificates.
14. That the Owner is not acquiring the Class [R-I] [R-II]
Certificates with the intent to transfer any of the Class [R-I] [R-II]
Certificates to any person or entity that will not have sufficient assets
to pay any taxes owed by the holder of such Class [R-I] [R-II]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I] [R-II] Certificates remain
outstanding.
15. That the Owner will, in connection with any transfer that it
makes of the Class [R-I] [R-II] Certificates, obtain from its transferee
the representations required by Section 5.02(d) of the Pooling and
Servicing Agreement under which the Class [R-I] [R-II] Certificates were
issued and will not consummate any such transfer if it knows, or knows
facts that should lead it to believe, that any such representations are
false.
16. That the Owner will, in connection with any transfer that it
makes of any Class [R-I] [R-II] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I] [R-II] Certificate to impede the assessment
or collection of any tax and that it has no actual knowledge that the
proposed transferee: (i) has insufficient assets to pay any taxes owed by
such transferee as holder of such Class [R-I] [R-II] Certificate; (ii) may
become insolvent or subject to a bankruptcy proceeding, for so long as the
Class [R-I] [R-II] Certificates remain outstanding; and (iii) is not a
"Permitted Transferee".
17. Check the applicable paragraph:
[_] The present value of the anticipated tax liabilities
associated with holding the [R-I] [R-II] Certificate, as
applicable, does not exceed the sum of:
(i) the present value of any consideration given to the Owner to
acquire such [R-I] [R-II] Certificate;
(ii) the present value of the expected future distributions on such
[R-I] [R-II] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such [R-I] [R-II] Certificate as the related
REMIC generates losses.
For purposes of this calculation, (i) the Owner 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 Owner 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 Owner.
[_] The transfer of the [R-I] [R-II] Certificate complies with
U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and,
accordingly,
(i) the Owner is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the [R-I] [R-II] Certificate will only be taxed in
the United States;
(ii) at the time of the transfer, and at the close of the Owner's
two fiscal years preceding the year of the transfer, the Owner
had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Owner within the
meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in excess of $10 million;
(iii) the Owner will transfer the [R-I] [R-II] 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 Sections 1.860E-1(c)(4)(i), (ii)
and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury
Regulations; and
(iv) the Owner determined the consideration paid to it to acquire
the [R-I] [R-II] 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 Owner) that it has determined in good faith.
[_] None of the above.
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, by its [Title of Officer] and Authorized Signatory,
attested by its Assistant Secretary, this ____ day of _____, ___.
[NAME OF OWNER]
By: ___________________________________
[Name of Officer]
[Title of Officer]
______________________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be [Title of Officer], and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____, _____.
________________________________________
NOTARY PUBLIC
COUNTY OF ______________________________
STATE OF _______________________________
My Commission expires the
____ day of ___________, ____.
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
[Date]
Wells Fargo Bank, N.A.
Wells Fargo Center
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32, Class [R-I] [R-II],
evidencing a ____% percentage interest in the Class to which they
belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________ (the "Transferor") to ______________________ (the "Transferee") of the
captioned Class [R-I] [R-II] Certificates (the "Class [R-I] [R-II]
Certificates"), pursuant to Section 5.02 of the pooling and servicing agreement
(the "Pooling and Servicing Agreement"), dated as of June 1, 2007, among
Wachovia Commercial Mortgage Securities, Inc., as Depositor, Wachovia Bank,
National Association, as Master Servicer, CWCapital Asset Management LLC, as
Special Servicer, and Wells Fargo Bank, N.A., as Trustee. All terms used herein
and not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Class [R-I] [R-II] Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit H-1. The Transferor does not know or
believe that any representation contained therein is false.
3. The Transferor at the time of this transfer has conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future.
4. The Transferor understands that the transfer of the Class [R-I]
[R-II] Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the test described above in
Paragraph 3 has been met as to any transfer.
Very truly yours,
By: __________________________________
Name:_____________________________
Title:____________________________
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: Commercial Mortgage Surveillance
Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
56 Water Street
New York, New York 10041-0003
Attention: CMBS Surveillance Group
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
pooling and servicing agreement, dated as of June 1, 2007 (the "Pooling and
Servicing Agreement") relating to Wachovia Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32. Any term with initial
capital letters not otherwise defined in this notice has the meaning given such
term in the Pooling and Servicing Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Pooling and
Servicing Agreement.
The designation of ____________________ as Special Servicer will
become final if certain conditions are met and on the date you will deliver to
Wells Fargo Bank, N.A., the trustee under the Pooling and Servicing Agreement
(the "Trustee"), a written confirmation stating that the appointment of the
person designated to become the Special Servicer will not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates.
Please acknowledge receipt of this notice by signing the enclosed copy of this
notice where indicated below and returning it to the Trustee, in the enclosed
stamped self-addressed envelope.
Very truly yours,
WELLS FARGO BANK, N.A.
By:___________________________________
Name:
Title:
Receipt and acknowledged:
Moody's Investors Service, Inc.
By:__________________________________________
Title:_______________________________________
Date:________________________________________
Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc.
By:__________________________________________
Title:_______________________________________
Date:________________________________________
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attn: Corporate Trust Services - Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32
Ladies & Gentlemen:
Pursuant to Section 6.09 of the pooling and servicing agreement,
dated as of June 1, 2007 (the "Pooling and Servicing Agreement"), relating to
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32, the undersigned hereby agrees with all the other
parties to the Pooling and Servicing Agreement that the undersigned shall serve
as Special Servicer under, and as defined in, the Pooling and Servicing
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Pooling and Servicing Agreement and bound thereby
to the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b)(ii)-(ix) of the Pooling and Servicing
Agreement as if it were the Special Servicer thereunder. The undersigned
additionally represents that, as of the date hereof, it has been duly organized
and is validly existing under the laws of the jurisdiction of its organization
and that it is in compliance with the laws of each state in which a Mortgaged
Property (as defined in the Pooling and Servicing Agreement) is located to the
extent necessary to perform its obligations under the Pooling and Servicing
Agreement.
___________________________________________
By:________________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT J
LIST OF EARNOUT AND HOLDBACK MORTGAGE LOANS
Loan Seller Annex/Loan Number Property Name Current Loan Amount
- ----------- ----------------- -------------------------------------- -------------------
Wachovia 9.00 Rockvale Square 92,400,000.00
Wachovia 32.00 Wellington Market Place 30,000,000.00
Wachovia 35.00 Siena Office Park 28,620,000.00
Wachovia 36.00 Columbus Park Crossing Shopping Center 28,000,000.00
Wachovia 58.00 BPRE Pool 13,200,000.00
Wachovia 60.00 Shoppes at Woodhill 13,100,000.00
Wachovia 63.00 Sunset Commons 12,988,766.20
Wachovia 68.00 One Front Street 11,800,000.00
Wachovia 86.00 Plaza 57 9,250,000.00
Wachovia 101.00 Shoppes at Pennington 6,100,000.00
Wachovia 113.00 5724-32 South Blackstone Avenue 4,600,000.00
Wachovia 30.00 Environs Residential Rental Community 31,000,000.00
Wachovia 73.00 159-181 Second Avenue 11,000,000.00
Wachovia 46.00 Pompano Plaza 18,850,000.00
Wachovia 40.00 141 5th Avenue 25,000,000.00
Wachovia 87.00 8300 East Raintree Drive 9,200,000.00
Wachovia 55.00 Lazy Days Marina 14,000,000.00
Artesia 88.00 Bella Piazza 9,000,000.00
Artesia 104.00 Sunset Ridge Center 6,000,000.00
Loan Seller Initial Other Escrow Deposit Type of Other Escrow
- ----------- ----------------------------------------- -------------------------------------------------------------
Wachovia 2,200,000 / 2,200,000 / 340,000 / 250,000 First Occupancy Holdback Reserve /
Second Occupancy Holdback Reserve /
Retail Brand Alliance Litigation
Reserve / Tenant Leasing Holdback
Reserve
Wachovia 5,800,000 Holdback Reserve
Wachovia 240,905 / 2,887,522 Apex Industrial Holdback / HQ Holdback
Wachovia 1,101,751 Holdback Reserve
Wachovia 750,000 / Spr--$20/SF of vacated Holdback Reserve / Rollover LOC Reserve
tenant space if any existing as of
note origination
Wachovia 0 0
Wachovia 1,300,000 Holdback Reserve
Wachovia 22,650 / 42,139.50 Pacific Source TILC Reserve / Pacific Source Holdback Reserve
Wachovia 55,665 / 130,000 if HSBC terminates HSBC Holdback Reserve / HSBC Early
its lease either in July 2010 Termination Deposit / Jenna White TILC Reserve
or July 2012 / 13,825
Wachovia 970,000 Holdback Reserve
Wachovia 225,000 Holdback Reserve
Wachovia 2,250,000 Holdback Reserve
Wachovia 250,000 Holdback Reserve
Wachovia 35,000 / 950,000 (LOC) if Borrower Outparcel 1 Reserve / Outparcel 2
has not entered into lease agreement Reserve LOC # 1 / Outparcel 2
of annual rent at least $205,000 for Reserve LOC # 2 / Outparcel 2
at least 10 years by 11/1/09 / Reserve LOC # 3 / Nail Paradise
-950,000 (LOC) if Lender hasn't Holdback Reserve
received evidence that Borrower has
entered into Outparcel 2 Lease by
12/1/11 / 950,000 (LOC) if Lender
hasn't received evidence that
Borrower has entered into Outparcel
2 Lease by 12/1/13 / 90,000
Wachovia 123000 / 375,000 / 10,000,000 Outstanding TILC Escrow Account / Debt Service
Escrow Account / HSBC Holdback Reserve
Wachovia 0 / 61,405 AmazingMail.com Rollover Reserve /
Amazing Mail Holdback Reserve
Wachovia 1,500,000 / 1,000,000 Capital Improvement Holdback Reserve /
Economic Holdback Reserve
Artesia 1,200,000 Leasing Achievement
Artesia 396,000 Leasing Achievement
Loan Seller Holdback/Earnout
- ----------- ----------------
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Wachovia Y
Artesia Y
Artesia Y
EXHIBIT K-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Wachovia Bank, National Association
8739 Research Drive - URP4
Charlotte, North Carolina 28288
Attention: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32
CWCapital Asset Management LLC
700 Twelfth Street, N.W., Suite 700
Washington, D.C. 20005
Attention: David Iannarone
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32
In accordance with Section 3.15 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of June 1, 2007, by
and among Wachovia Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer (in such
capacity, the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer (the "Special Servicer"), and Wells Fargo Bank, N.A., as trustee (the
"Trustee"), with respect to the Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information").
3. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential (except from its agents
and auditors), and such Information will not, without the prior written
consent of the [Trustee] [Master Servicer] [Special Servicer], be
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; provided that the
undersigned may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of any
Certificate or interest therein, but only if such person or entity
confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
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 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 Trustee, the Master Servicer, the Special Servicer 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.
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.
__________________________________________
BENEFICIAL HOLDER OF A
CERTIFICATE
By:_______________________________________
Name:__________________________________
Title:_________________________________
Phone:_________________________________
EXHIBIT K-2
FORM OF PROSPECTIVE PURCHASER CERTIFICATE
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Wachovia Bank, National Association
NC1075
8739 Research Drive - URP4
Charlotte, North Carolina 28262-1075
Attn: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
CWCapital Asset Management LLC
700 Twelfth Street, N.W., Suite 700
Washington, D.C. 20005
Attention: David Iannarone
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32 (the "Certificates")
In accordance with Section 3.15 of the pooling and servicing
agreement(the "Pooling and Servicing Agreement"), dated as of June 1, 2007,
among Wachovia Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer (in such
capacity, the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer (the "Special Servicer"), and Wells Fargo Bank, N.A., as trustee (the
"Trustee"), with respect to the Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2007-C32 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class __
Certificates.
2. The undersigned is requesting access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information") for use in evaluating such possible
investment.
3. In consideration of the [Trustee's] [Master Servicer's] [Special
Servicer's] disclosure to the undersigned of the Information, the
undersigned will keep the Information confidential (except from its agents
and auditors), and such Information will not, without the prior written
consent of the [Trustee] [Master Servicer] [Special Servicer], be
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 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 Trustee, the Master Servicer, the Special Servicer 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.
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.
_______________________________________
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:_______________________________
Title:______________________________
Phone:______________________________
EXHIBIT L
INITIAL COMPANION HOLDERS
Name: The trust fund created under the Morgan Stanley 2007-IQ14 Pooling and
Servicing Agreement, with respect to the Beacon D.C. & Seattle Pool Parri Passu
Note A-1.
Address: The Bank of New York Trust Company NA, 2 North LaSalle, Suite
1020, Chicago, IL 60602, Attention CMBS MS 2007 IQ14
Wiring Instructions:
Tax Identification Number:
Name: Morgan Stanley Mortgage Capital Inc., with respect to the Beacon D.C. &
Seattle Pool Parri Passu Note A-2 and Note A-3.
Address: 1221 Avenue of the Americas, 27th Floor, New York,
New York 10020
Wiring Instructions:
Tax Identification Number:
Name: Bear Sterns Commercial Mortgage, Inc., with respect to the Beacon D.C. &
Seattle Pool Parri Passu Note A-4, Note A-5 and Note B-1.
Address: 383 Madison Avenue, New York, New York 10179
Wiring Instructions:
Tax Identification Number:
Name: The trust fund created under the Wachovia Bank Commercial Mortgage Trust
2007-C31 Pooling and Servicing Agreement, with respect to the Beacon D.C. &
Seattle Pool Parri Passu Note A-6.
Address: Wells Fargo, N.A., 9062 Old Annapolis Road, Coulmbia, Maryland
21045-1951, Attention: Corporate Trust Services (CMBS) Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C31
Wiring Instructions:
Tax Identification Number:
Name: Wachovia Bank, National Association, with respect to the ING Hospitality
Pool Note A2.
Address: 301 South College Street, One Wachovia Center NC0166, Charlotte,
NC 28288
Wiring Instructions:
Tax Identification Number:
Name: MW1-2002, LLC, with respect to the Two Herald Square Note B, 17 Battery
Place South Note B, Centerside II Note B, La Jolla Centre I Note B and La Jolla
Centre II Note B.
Address: 301 South College Street - NC0166, Charlotte, NC 28288
Wiring Instructions:
Tax Identification Number:
Name: La Salle Bank National Association, with respect to the DDR Southeast Pool
Parri Passu Note A-2.
Address: 135 South LaSalle Street, Suite 3410, Chicago, Illinois 60603
Wiring Instructions:
Tax Identification Number:
Name: German American Capital Corporation, with respect to the DDR Southeast
Pool Parri Passu Note A-3.
Address: 60 Wall Street, New York, New York 10005
Wiring Instructions:
Tax Identification Number:
Name: Marriot International Capital Corporation, with respect to the Courtyard
by Marriot - Philadelphia, PA Subordinate Note.
Address: c/o Marriot International, Inc., One Marriot Drive, Department
924.11, Washington, D.C. 20058
Wiring Instructions:
Tax Identification Number:
Name: Caplease Debt Funding, LP, with respect to the Bunge North America Junior
Note A and Note B.
Address: 110 Maiden Lane, 26th Floor, New York, NY 10005
Wiring Instructions:
Tax Identification Number
EXHIBIT M
FORM OF PURCHASE OPTION NOTICE
PURSUANT TO SECTION 3.18
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attn: Corporate Trust Services - Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Wachovia Bank, National Association
NC 1075
8739 Research Drive URP4
Charlotte, North Carolina 28262-1075
Attn: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-C32
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of June 1, 2007, by
and among Wachovia Commercial Mortgage Securities, Inc., as Depositor, Wells
Fargo Bank, N.A., as Trustee, CWCapital Asset Management LLC, as Special
Servicer, and Wachovia Bank, National Association, as Master Servicer.
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersigned Option Holder [is the Special Servicer] [is the
Majority Subordinate Certificateholder] [acquired its Purchase Option from the
[Special Servicer] [Majority Subordinate Certificateholder] on _________].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(c) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of the date hereof, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Special Servicer in
exchange for the release of the Mortgage Loan, the related Mortgaged Property
and delivery of the related Mortgage Loan File.
The undersigned Option Holder agrees that it shall prepare and
provide the Special Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan ____, together with such other
documents or instruments as the Special Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and that the
undersigned Option Holder, or its designee, shall be obligated to close its
purchase of Mortgage Loan ___ in accordance with the terms and conditions of
this letter and Section 3.18 of the Pooling and Servicing Agreement.
Very truly yours,
[Option Holder]
By: __________________________________
Name:
Title:
[By signing this letter in the space provided below, the [Special
Servicer] [Majority Subordinate Certificateholder] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[___________________________________________]
By:
Name:
Title:
EXHIBIT N
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
56 Water Street
New York, New York 10041-0003
Attn: CMBS Surveillance Group
From: Wachovia Bank, National Association, in its capacity as Master Servicer
(the "Master Servicer") under the pooling and servicing agreement dated as
of June 1, 2007 (the "Pooling and Servicing Agreement"), among the Master
Servicer, Wells Fargo Bank, N.A., as Trustee and others.
Date:_____________, 20___
Re: Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates Series 2007-C32
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 Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
a full defeasance of the entire principal balance of the Mortgage
Loan; or
a partial defeasance of a portion of the principal balance of the
Mortgage Loan that represents and, an allocated loan amount of $____________ or
_______% of the entire principal balance of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) 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.
(ii) The defeasance was consummated on __________, 20__.
(iii) 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 S&P, (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.
(iv) The Master Servicer received an opinion of counsel (from counsel
approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC
Event.
(v) The Master Servicer determined that the defeasance collateral will
be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as amended to the date
of the defeasance (the "S&P Criteria")) as of the date of the
defeasance, and after the defeasance owns no assets other than the
defeasance collateral and real property securing Mortgage Loans
included in the pool.
(vi) The Master Servicer received written confirmation of the crediting
of the defeasance collateral to an Eligible Account (as defined in
the S&P Criteria) in the name of the Defeasance Obligor, which
account is maintained as a securities account by a securities
intermediary and has been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i) grant
control of the pledged securities account to the Trustee, (ii)
require the securities intermediary to make the scheduled payments
on the Mortgage Loan from the proceeds of the defeasance collateral
directly to the Servicer's collection account in the amounts and on
the dates specified in the Mortgage Loan documents or, in a partial
defeasance, the portion of such scheduled payments attributed to the
allocated loan amount for the real property defeased, increased by
any defeasance premium specified in the Mortgage Loan documents (the
"Scheduled Payments"), (iii) permit reinvestment of proceeds of the
defeasance collateral only in Permitted Investments (as defined in
the S&P Criteria), (iv) permit release of surplus defeasance
collateral and earnings on reinvestment from the pledged securities
account only after the Mortgage Loan has been paid in full, if any
such release is permitted, (v) prohibit transfers by the Defeasance
Obligor of the defeasance collateral and subordinate liens against
the defeasance collateral, and (vi) provide for payment from sources
other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities
account and all fees and expenses of maintaining the existence of
the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm of
independent certified public accountants, who were approved by
Master Servicer in accordance with the Servicing Standard stating
that (i) revenues from the defeasance collateral (without taking
into account any earnings on reinvestment of such revenues) will be
sufficient to timely pay each of the Scheduled Payments after the
defeasance including the payment in full of the Mortgage Loan (or
the allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan, on
its Anticipated Repayment Date), (ii) the revenues received in any
month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the
Defeasance Obligor in any calendar or fiscal year will not exceed
such Defeasance Obligor's interest expense for the Mortgage Loan (or
the allocated portion thereof in a partial defeasance) for such
year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in the
pool. The entire principal balance of the Mortgage Loan as of the
date of defeasance was less than both $[______] and five percent of
the pool balance, which is less than [__]% of the aggregate
Certificate Balance of the Certificates as of the date of the most
recent Trustee's Distribution Date Statement received by us (the
"Current Report").
(x) 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.
(c) 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.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e)Agree to provide copies of all items listed in Exhibit B to you
upon request.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ______________________________________
Name:
Title:
EXHIBIT O
FORM OF DEPOSITOR CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates
Series 2007-C32 (the "Trust Fund")
I, [identify the certifying individual], a [title] of Wachovia
Commercial Mortgage Securities, Inc., the depositor into the above-referenced
Trust Fund, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports
on Form 10-D required to be filed in respect of periods included in the
year covered by this annual report, of the Trust Fund;
2. Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
with respect to the period covered by this annual report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided on 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 statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act periodic reports, the servicers have
fulfilled their obligations under the pooling and servicing agreement in
all material respects; 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: CWCapital
Asset Management LLC and Wells Fargo Bank, N.A.
Date:__________________________________________
_______________________________________________
President and Chief Executive Officer
Wachovia Commercial Mortgage Securities, Inc.
EXHIBIT P
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE TRUSTEE
Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates
Series 2007-C32 (the "Trust Fund")
I, [identify the certifying individual], a [title] of Wells Fargo
Bank, N.A., certify to Wachovia Commercial Mortgage Securities, Inc. and their
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 (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), 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 Fund;
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 distribution and servicing information
required to be provided to the trustee by the master servicer under the
pooling and servicing agreement is included in the reports delivered by
the master 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.
Date:_________________________________
______________________________________
[Title]
Wells Fargo Bank, N.A.
EXHIBIT Q-1
FORM OF MASTER SERVICER CERTIFICATION TO BE
PROVIDED TO THE DEPOSITOR
Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates
Series 2007-C32 (the "Trust Fund")
I, [identify the certifying individual], a [title] of Wachovia Bank,
National Association, certify to Wachovia Commercial Mortgage Securities, Inc.
and their officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification (capitalized terms used herein
without definition shall have the meanings assigned to such terms in the Pooling
and Servicing Agreement), that:
1. I have reviewed the servicing reports relating to the Trust Fund
delivered by the master servicer to the trustee pursuant to the Pooling
and Servicing Agreement covering the fiscal year [_____];
2. Based on my knowledge, (a) assuming the accuracy of the
statements required to be made in the corresponding certificate of the
special servicer pursuant to Section 8.17(n) 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
statements 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, provided, however, the servicer shall provide any
information of which the servicer has knowledge, to the extent such
information updates the Mortgage Information and is required to be
provided by the servicer pursuant to the Pooling and Servicing Agreement),
the servicing information 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, and assuming the accuracy of the
statements required to be made in the corresponding certificate of the
special servicer pursuant to Section 8.17(n) of the Pooling and Servicing
Agreement and assuming that the special servicer timely delivered to the
master servicer all servicing information required to be provided to the
master servicer by the special servicer under the Pooling and Servicing
Agreement, the servicing information required to be provided to the
trustee by the master servicer under the Pooling and Servicing Agreement
is included in the servicing reports delivered by the master servicer to
the trustee;
4. I am responsible for reviewing the activities performed by the
master servicer under the Pooling and Servicing Agreement and based upon
my knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements required in this report under Item 1123 of
Regulation AB with respect to the master servicer, and except as disclosed
in the compliance certificate delivered by the master servicer under
Section 3.13 of the Pooling and Servicing Agreement, the master servicer
has fulfilled its obligations under the Pooling and Servicing Agreement in
all material respects;
5. The accountant's statement delivered pursuant to Section 3.14 of
the Pooling and Servicing Agreement discloses all significant deficiencies
relating to the master servicer's compliance with the minimum servicing
standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the Pooling and Servicing Agreement; and
6. 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 master servicer have been provided as
required by the Pooling and Servicing Agreement, except as otherwise
disclosed in the servicing reports. Any material instances of
noncompliance described in such reports have been disclosed in this report
on Form 10-K.
7. If this certification is delivered by the Master Servicer, add:
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 8.17(n) 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.
If this certification is delivered by a Sub-Servicer retained by the
Master Servicer, add: 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 8.17(n) of the Pooling and Servicing
Agreement.
In giving the certification above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [names of
sub-servicers].
Date:____________________________________
_________________________________________
[Title]
Wachovia Bank, National Association
EXHIBIT Q-2
FORM OF SPECIAL SERVICER CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates
Series 2007-C32 (the "Trust Fund")
I, [identify the certifying individual], a [title] of CWCapital
Asset Management LLC, certify to Wachovia Commercial Mortgage Securities, Inc.
and their officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification (capitalized terms used herein
without definition shall have the meanings assigned to such terms in the pooling
and servicing agreement), that:
1. I have reviewed the servicing reports relating to the Trust Fund
delivered by the special servicer to the depositor pursuant to Section
3.13 of the pooling and servicing agreement covering the fiscal year
[____];
2. Based on my knowledge, the servicing information in these reports
delivered by the special servicer, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the period
covered by such reports;
3. Based on my knowledge, the servicing information required to be
provided under Section 3.13 of the pooling and servicing agreement is
included in such servicing reports delivered by the special servicer to
the depositor;
4. I am responsible for reviewing the activities performed by the
special servicer under the pooling and servicing agreement and based upon
my knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements required in such reports under Item 1123 of
Regulation AB with respect to the special servicer, and except as
disclosed in the compliance certificate delivered by the special servicer
under Section 3.13 of the pooling and servicing agreement, the special
servicer has fulfilled its obligations under the pooling and servicing
agreement in all material respects;
5. The accountant's statement delivered pursuant to Section 3.14 of
the pooling and servicing agreement discloses all significant deficiencies
relating to the special servicer's compliance with the minimum servicing
standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the pooling and servicing agreement; and
6. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities with respect to the special servicer required to be delivered
by the special servicer under the pooling and servicing agreement in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18
and 15d-18 have been delivered pursuant to the terms of the pooling and
servicing agreement. Any material instances of noncompliance with the
servicing criteria have been disclosed in such reports.
Date:_______________________________
____________________________________
[Title]
CWCapital Asset Management LLC
EXHIBIT R
CLASS A-PB PLANNED PRINCIPAL BALANCE SCHEDULE
Period Date Balance ($)
-------- -------- -------------
0 06/28/07 62,827,000.00
1 07/15/07 62,827,000.00
2 08/15/07 62,827,000.00
3 09/15/07 62,827,000.00
4 10/15/07 62,827,000.00
5 11/15/07 62,827,000.00
6 12/15/07 62,827,000.00
7 01/15/08 62,827,000.00
8 02/15/08 62,827,000.00
9 03/15/08 62,827,000.00
10 04/15/08 62,827,000.00
11 05/15/08 62,827,000.00
12 06/15/08 62,827,000.00
13 07/15/08 62,827,000.00
14 08/15/08 62,827,000.00
15 09/15/08 62,827,000.00
16 10/15/08 62,827,000.00
17 11/15/08 62,827,000.00
18 12/15/08 62,827,000.00
19 01/15/09 62,827,000.00
20 02/15/09 62,827,000.00
21 03/15/09 62,827,000.00
22 04/15/09 62,827,000.00
23 05/15/09 62,827,000.00
24 06/15/09 62,827,000.00
25 07/15/09 62,827,000.00
26 08/15/09 62,827,000.00
27 09/15/09 62,827,000.00
28 10/15/09 62,827,000.00
29 11/15/09 62,827,000.00
30 12/15/09 62,827,000.00
31 01/15/10 62,827,000.00
32 02/15/10 62,827,000.00
33 03/15/10 62,827,000.00
34 04/15/10 62,827,000.00
35 05/15/10 62,827,000.00
36 06/15/10 62,827,000.00
37 07/15/10 62,827,000.00
38 08/15/10 62,827,000.00
39 09/15/10 62,827,000.00
40 10/15/10 62,827,000.00
41 11/15/10 62,827,000.00
42 12/15/10 62,827,000.00
43 01/15/11 62,827,000.00
44 02/15/11 62,827,000.00
45 03/15/11 62,827,000.00
46 04/15/11 62,827,000.00
47 05/15/11 62,827,000.00
48 06/15/11 62,827,000.00
49 07/15/11 62,827,000.00
50 08/15/11 62,827,000.00
51 09/15/11 62,827,000.00
52 10/15/11 62,827,000.00
53 11/15/11 62,827,000.00
54 12/15/11 62,827,000.00
55 01/15/12 62,827,000.00
56 02/15/12 62,827,000.00
57 03/15/12 62,827,000.00
58 04/15/12 62,827,000.00
59 05/15/12 62,827,000.00
60 06/15/12 62,826,002.70
61 07/15/12 62,043,055.87
62 08/15/12 61,350,607.22
63 09/15/12 60,654,607.46
64 10/15/12 59,860,828.29
65 11/15/12 59,157,181.19
66 12/15/12 58,355,930.14
67 01/15/13 57,644,557.82
68 02/15/13 56,929,536.91
69 03/15/13 55,929,818.81
70 04/15/13 55,200,287.57
71 05/15/13 54,372,484.35
72 06/15/13 53,634,958.37
73 07/15/13 52,799,344.24
74 08/15/13 52,053,742.11
75 09/15/13 51,304,315.31
76 10/15/13 50,457,073.01
77 11/15/13 49,699,448.89
78 12/15/13 48,844,197.80
79 01/15/14 48,078,292.89
80 02/15/14 47,308,458.72
81 03/15/14 46,254,482.08
82 04/15/14 45,475,271.16
83 05/15/14 29,820,366.80
84 06/15/14 29,008,209.35
85 07/15/14 28,094,748.96
86 08/15/14 27,273,743.69
87 09/15/14 26,448,531.67
88 10/15/14 25,522,317.87
89 11/15/14 24,688,125.28
90 12/15/14 23,753,138.81
91 01/15/15 22,909,874.33
92 02/15/15 22,062,288.57
93 03/15/15 20,921,935.42
94 04/15/15 20,064,144.05
95 05/15/15 19,106,108.26
96 06/15/15 18,239,004.91
97 07/15/15 17,271,872.82
98 08/15/15 16,395,362.76
99 09/15/15 15,514,360.30
100 10/15/15 14,533,650.09
101 11/15/15 13,643,099.56
102 12/15/15 12,653,062.49
103 01/15/16 11,752,866.77
104 02/15/16 10,848,056.75
105 03/15/16 9,749,570.52
106 04/15/16 8,834,479.96
107 05/15/16 7,820,472.50
108 06/15/16 6,895,487.09
109 07/15/16 5,871,814.11
110 08/15/16 4,936,833.16
111 09/15/16 3,997,058.86
112 10/15/16 2,958,938.84
113 11/15/16 2,009,018.56
114 12/15/16 960,987.79
115 01/15/17 818.31
116 02/15/17 0
EXHIBIT S
RELEVANT SERVICING CRITERIA
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Trustee, the Master
Servicer, the Special Servicer and each Sub-Servicer identified by the Master
Servicer or the Special Servicer shall address, at a minimum, the criteria
identified below as applicable to each Reporting Servicer:
- ----------------------------------------------------------------------------------------------------------
SERVICING CRITERIA
- ----------------------------------------------------------------------------------------------------------
Reference Criteria Reporting Servicer
- ----------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any Master Servicer
performance or other triggers and events of default in Special Servicer
accordance with the transaction agreements. Trustee
1122(d)(1)(ii) If any material servicing activities are outsourced to third Master Servicer
parties, policies and procedures are instituted to monitor the Special Servicer
third party's performance and compliance with such servicing Trustee
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect Master Servicer
on the party participating in the servicing function Special Servicer
throughout the reporting 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 Master Servicer
custodial bank accounts and related bank clearing accounts no Special Servicer
more than two business days following receipt, or such other Trustee
number of days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor Trustee
or to an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Master Servicer
flows or distributions, and any interest or other fees charged Special Servicer
for such advances, are made, reviewed and approved as Trustee
specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Master Servicer
accounts or accounts established as a form of Special Servicer
overcollateralization, are separately maintained (e.g., with Trustee
respect to commingling of cash) as set forth in the
transaction agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Master Servicer
depository institution as set forth in the transaction Special Servicer
agreements. For purposes of this criterion, "federally insured Trustee
depository institution" with respect 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 Master Servicer
access. Special Servicer
Trustee
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Trustee
asset-backed securities related bank accounts, including Master Servicer
custodial accounts and related bank clearing accounts. These Special Servicer
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the 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 Trustee
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of
mortgage loans serviced by the Reporting Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Trustee
accordance with 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 Trustee
business days 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 Trustee
with 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 Trustee
required by the transaction agreements or related mortgage Master Servicer
loan documents. Special Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee
required by the transaction agreements Special Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the mortgage loan Trustee
pool are made, reviewed and approved in accordance with any Special Servicer
conditions or requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Master Servicer
accordance 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 Reporting Servicer's records regarding the mortgage loans Master Servicer
agree with the Reporting 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 Master Servicer
mortgage loans (e.g., loan modifications or re-agings) are Special Servicer
made, reviewed and 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 Master Servicer
the period a mortgage loan is delinquent in accordance with Special Servicer
the transaction 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 Master Servicer
loans 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 Master Servicer
escrow 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 Master Servicer
insurance 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 Master Servicer
be made on 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 Master Servicer
two 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 Master Servicer
recognized 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.
[NAME OF REPORTING SERVICER]
Date: ________________________________
By: ________________________________
Name: ________________________________
Title: ________________________________
EXHIBIT T
[RESERVED]
EXHIBIT U
ADDITIONAL FORM 10-D DISCLOSURE
- ----------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
- ----------------------------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance Information Master Servicer (only with respect
Any information required by 1121 which is NOT to Item 1121(a)(12) and solely with respect to
included on the Distribution Date Statement non-Specially Serviced Mortgage Loans)
Special Servicer (only with respect to Item
1121(a)(12) and solely with respect to Specially
Serviced Mortgage Loans)
Trustee
Item 2: Legal Proceedings per Item 1117 of Regulation (i) All parties to the Pooling and Servicing
AB (to the extent material to Certificateholders) Agreement (as to themselves), (ii) the Trustee, the
Master Servicer and the Special Servicer as to the
Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32
(in the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
litigation pursuant to Section 3.30 of the Pooling
and Servicing Agreement), (iii) the Depositor as to
the sponsors, any 1110(b) originator and any
1100(d)(1) party
Item 3: Sale of Securities and Use of Proceeds Depositor
Item 4: Defaults Upon Senior Certificates Trustee
Item 5: Submission of Matters to a Vote of Trustee
Certificateholders
Item 6: Significant Obligors of Pool Assets Depositor
Master Servicer
Item 7: Significant Enhancement Provider Information Depositor
Item 8: Other Information (information required to 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 Trustee
EXHIBIT V
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 410-715-2380 AND VIA EMAIL TO WELLS FARGO BANK, N.A.
AT cts.sec.notifications@wellsfargo.com AND VIA OVERNIGHT MAIL TO WELLS
FARGO AND WACHOVIA AT THE ADDRESSES IMMEDIATELY BELOW**
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attn: Corporate Trust Services - Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2007-C32
SEC REPORT PROCESSING
Wachovia Commercial Mortgage Securities, Inc.
301 South College Street
Charlotte, North Carolina 28288
Attention: Charles Culbreth, Managing Director
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [8.17(i)][8.17(j)][8.17(k)] of the
pooling and servicing agreement, dated as of June 1, 2007 (the "Pooling and
Servicing Agreement"), by and among Wachovia Commercial Mortgage Securities,
Inc., as Depositor, Wachovia Bank, National Association, as Master Servicer,
CWCapital Asset Management LLC, as Special Servicer, and Wells Fargo Bank, N.A.,
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:
cc: Depositor
EXHIBIT W
ADDITIONAL FORM 10-K DISCLOSURE
- ----------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
- ----------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
Item 9B: Other Information (information required to 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 Trustee
Additional Item: (i) All parties to the Pooling and Servicing
Disclosure per Item 1117 of Reg AB (to the extent Agreement (as to themselves), (ii) the Trustee, the
material to Certificateholders) Master Servicer and the Special Servicer as to the
Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2007-C32
(in the case of the Master Servicer and the Special
Servicer, to be reported by the party controlling
litigation pursuant to Section 3.30 of the Pooling
and Servicing Agreement), (iii) the Depositor as to
the sponsors, any 1110(b) originator and any
1100(d)(1) party
Additional Item: (i) All parties to the Pooling and Servicing
Disclosure per Item 1119 of Reg AB (to the extent Agreement (as to themselves), as to the Master
material to Certificateholders) Servicer, only to the extent material to
Certificateholders and only as to affiliations
under 1119(a) with the Trustee, Special Servicer or
a 1108(a)(3) Sub-Servicer, (ii) the Trustee, the
Special Servicer and the Master Servicer as to the
Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series
2007-C32, (iii) the Depositor as to the sponsors,
any 1110(b) originator and any 1100(d)(1) party
Additional Item: Depositor
Disclosure per Item 1112(b) of Reg AB Master Servicer
Additional Item: Depositor
Disclosure per Items 1114(b) and 1115(b) of Reg AB
EXHIBIT X
FORM 8-K DISCLOSURE INFORMATION
- ----------------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
- ----------------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement All parties to this Agreement only as to agreements
such entity is a party to or entered into on behalf
of the Trust Fund
Item 1.02- Termination of a Material Definitive All parties to this Agreement only as to agreements
Agreement such entity is a party to or entered into on behalf
of the Trust Fund
Item 1.03- Bankruptcy or Receivership Depositor
Item 2.04- Triggering Events that Accelerate or Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to Rights of Trustee
Security Holders
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational Depositor
Material
Item 6.02- Change of Master Servicer, Special Master Servicer (as to itself or a Sub-Servicer
Servicer or Trustee retained by the Master Servicer)
Special Servicer(as to itself or a Sub-Servicer
retained by the Special Servicer)
Trustee
Item 6.03- Change in Credit Enhancement or External Depositor
Support Trustee
Item 6.04- Failure to Make a Required Distribution Trustee
Item 6.05- Securities Act Updating Disclosure Depositor
Item 7.01- Reg FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT Y
SUB-SERVICER LIST
SUB-SERVICERS SUB-SERVICED MORTGAGE LOANS
- -----------------------------------------------------------------------------
Northmarq Capital Porto Bella
Le Coeur du Monde Apartments
Stanford Place II Apartments
Holliday Fenoglio Fowler, L.P. Sheraton West - Richmond, VA
The Timmons Place Office Building
1331 Gemini Building
The Timmons Square Office Building
Ocean Rose Inn - Narragansett, RI
CBRE Melody of Texas, LP Village Square Apartments
GEMSA One Front Street
8300 East Raintree Drive
EXHIBIT Z
TENANTS-IN-COMMON TRANSFER COMPLIANCE
Timing & Notice Approval of New Accredited
Sponsor Name Requirement Borrower Investors Only
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers Until written notice is At Lender's Yes
received from Discretion
Sponsor; upon 10
days prior notice
Triple Net Properties (NNN) - Future TIC Transfers After written notice At Lender's Yes
from Sponsor; upon Discretion
30 days notice; no
more than 20
permitted
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Until the 18th At Lender's Yes
Payment Date; upon Discretion
10 days prior notice
SCI Real Estate Investments (SCI) - Future TIC Transfers After the 18th At Lender's Yes
Payment Date; upon Discretion
30 days notice; no
more than 20
permitted
Anthony Zanze Sixty (60) days' At Lender's Yes
prior notice Discretion
Resource Real Estate - Initial TIC Transfers 30 days notice; At Lender's Resource requires
Lender has 10 days Discretion under their TIC
to approve or program; Not a
disapprove once all requirement of the
information submitted Loan Documents
Resource Real Estate - Subsequent TIC Transfers 60 days notice At Lender's Resource requires
Discretion under their TIC
program; Not a
requirement of the
Loan Documents
Sponsor for Colony Grove Apartments TIC Agreement Sixty (60) days At Lender's Yes
prior notice Discretion
Continued Sponsor Control New Borrower
Sponsor Name Requirement Debt Liability
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers Sponsor is not required to maintain Joint & Several
any interest in the Property
Triple Net Properties (NNN) - Future TIC Transfers Not Applicable Joint & Several
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Sponsor is required to maintain a Joint & Several
direct or indirect interest in the
property of at least 1%
SCI Real Estate Investments (SCI) - Future TIC Transfers Not Applicable Joint & Several
Anthony Zanze The Environs, LLC shall at all times Joint & Several
own at least a 35.33% undivided
interest in the Property and be owned
and controlled at all times, directly or
indirectly, by Hamilton Zanze &
Company or its Affiliates.
Resource Real Estate - Initial TIC Transfers Not Required Joint & Several
Resource Real Estate - Subsequent TIC Transfers Not Required Joint & Several
Sponsor for Colony Grove Apartments TIC Agreement Colony Grove Apartments, LLC shall Joint & Several
at all times own at least a 13.62%
undivided interest in the Property and
be owned and controlled at all times,
directly or indirectly, by Hamilton
Zanze & Company or its Affiliates.
West Baseline Colony Grove, LLC
shall at all times own at least a
33.09% undivided interest in the
Property and be owned and controlled
at all times, directly or indirectly, by
Hamilton Zanze & Company or its
Affiliates
New Guarantor Sponsor Release General
Sponsor Name Requirement on Guaranty Pre-Conditions
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers Not Applicable; Not Applicable; (I) No Event of
Sponsor provides Sponsor provides Default; (ii) No
indemnity for all indemnity for all material adverse
entities entities change in financial
condition
Triple Net Properties (NNN) - Future TIC Transfers Not Applicable; Not Applicable; (I) No Event of
Sponsor provides Sponsor provides Default; (ii) No
indemnity for all indemnity for all material adverse
entities entities change in financial
condition
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Required from the No (I) No Event of
principal(s) of each Default; (ii) No
new TIC material adverse
change in financial
condition
SCI Real Estate Investments (SCI) - Future TIC Transfers Required from the Not applicable (I) No Event of
principal(s) of each Default; (ii) No
new TIC material adverse
change in financial
condition
Anthony Zanze Not Applicable; Not Applicable; 1. No Event of Default;
original indemnitors original indemnitors 2. Assumption Fee
Tony Zanze, Kurt Tony Zanze, Kurt
Houtkooper and Mark Houtkooper and Mark
Hamilton remain for Hamilton remain for
all entities all entities
Resource Real Estate - Initial TIC Transfers Party associated with No (I) No Event of
TIC must assume Default; (ii) No
obligations of current material adverse
indemnitor change in financial
condition
Resource Real Estate - Subsequent TIC Transfers Party associated with No No Event of Default
TIC must assume
obligations of current
indemnitor
Sponsor for Colony Grove Apartments TIC Agreement Not Applicable; Not Applicable; 1. No Event of Default;
original indemnitors original indemnitors 2. Assumption Fee
Tony Zanze, Kurt Tony Zanze, Kurt
Houtkooper, Thomas Houtkooper, Thomas
Persons and Mark Persons and Mark
Hamilton remain for Hamilton remain for
all entities all entities
Total Borrowers Required Closing & Assumption
Sponsor Name Permitted Documents
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers Max permitted under Settlement Statement; Transfer Deed;
Rev. Proc. 2002-14 Note Modification; Partial Loan
(currently 35) Assumption Agreement; Assumption of
TIC Agreement; UCCs; other
documents required by Lender
Triple Net Properties (NNN) - Future TIC Transfers Max permitted under Settlement Statement; Transfer Deed;
Rev. Proc. 2002-14 Note Modification; Partial Loan
(currently 35) Assumption Agreement; Assumption of
TIC Agreement; UCCs; other
documents required by Lender
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Max permitted under Settlement Statement; Transfer Deed;
Rev. Proc. 2002-14 Note Modification; Partial Loan
(currently 35) Assumption Agreement; TIC Indemnity;
Assumption of TIC Agreement; UCCs;
other documents required by Lender
SCI Real Estate Investments (SCI) - Future TIC Transfers Max permitted under Settlement Statement; Transfer Deed;
Rev. Proc. 2002-14 Note Modification; Partial Loan
(currently 35) Assumption Agreement; TIC Indemnity;
Assumption of TIC Agreement; UCCs;
other documentsrequired by Lender
Anthony Zanze Maximum is thirty Assignment and Assumption
(30). Agreement; Assumption of
TIC Agreement; UCCs;
others required by Lender
Resource Real Estate - Initial TIC Transfers Either (i) thirty-five Assumption of TIC Agreement and
(35) or (ii) the Management Agreement; Assignment
maximum number and Assumption of Loan Obligations;
allowable pursuant to UCCs; Documents and agreemetns
Revenue Procedure reasonably required by Lender
2002-22, I.R.B. 2002-14
Resource Real Estate - Subsequent TIC Transfers Either (i) thirty-five Documents and agreements
(35) or (ii) the reasonably required by Lender
maximum number
allowable pursuant
to Revenue Procedure
2002-22, I.R.B. 2002-14
Sponsor for Colony Grove Apartments TIC Agreement Maximum is thirty Assignment and Assumption
(30). Agreement; Assumption of TIC
Agreement; UCCs; others
required by Lender
Opinions Assumption/ Application
Sponsor Name Required Fees
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers Due Execution; $1000 per TIC LLC plus costs
Enforceability;
Non-Consolidation
(only if required at
initial closing)
Triple Net Properties (NNN) - Future TIC Transfers Due Execution; $2,000 application fee and
Enforceability; prorata 0.5% assumption fee,
Non-Consolidation plus costs
(only if required at
initial closing)
SCI Real Estate Investments (SCI) - Initiall TIC Transfers Due Execution; $1000 for first 5 sTICs; $750
Enforceability; for 6-10; $500 for 11-15; $250
Non-Consolidation for 15+; plus costs
(only if required at
initial closing)
SCI Real Estate Investments (SCI) - Future TIC Transfers Due Execution; $2,000 application fee and
Enforceability; prorata 0.5% assumption fee,
Non-Consolidation plus costs
(only if required at
initial closing)
Anthony Zanze Due Execution, $2,500 Application Fee and
enforceability, Assumption Fee equal to 0.5%
other opinions of Note balance multiplied by
required by Lender undivided interest transferred
for any sale in the first 2 years
and 1% of Note balance
multiplied by undivided
interest transferred for any
sale after first 2 years.
Resource Real Estate - Initial TIC Transfers Due Formation; prorata 0.125% assumption fee,
Authority; plus costs
Non-Consolidation;
Resource Real Estate - Subsequent TIC Transfers Non-Consolidation; $2,500 application fee and
Opinions required prorata 0.375% assumption
by Lender fee, plus costs
Sponsor for Colony Grove Apartments TIC Agreement Due Execution, $2,500 Application Fee and
enforceability, Assumption Fee equal to 0.5%
other opinions of Note balance multiplied by
required by Lender undivided interest transferred
for any sale in the first 2 years
and 1% of Note balance
multiplied by undivided interest
transferred for any sale after
first 2 years.
Title Down-Date Insurance
Sponsor Name SPE Requirement Endorsement Endorsements
- -----------------------------------------------------------------------------------------------------------------------------------
Triple Net Properties (NNN) - Initiall TIC Transfers All TIC LLCs must be Required Not Required
Delaware SPEs; all
organization
documents to be
approved by Lender
Triple Net Properties (NNN) - Future TIC Transfers All TIC LLCs must be Required Not Required
Delaware SPEs; all
organization
documents to be
approved by Lender
SCI Real Estate Investments (SCI) - Initiall TIC Transfers All TIC LLCs must be Required Not Required
Delaware SPEs; all
organization
documents to be
approved by Lender
SCI Real Estate Investments (SCI) - Future TIC Transfers All TIC LLCs must be Required Not Required
Delaware SPEs; all
organization
documents to be
approved by Lender
Anthony Zanze New TIC Borrower Required Required
must be SPE with
org. docs. approval
by Lender
Resource Real Estate - Initial TIC Transfers Either i) SPE Corp As a matter of As required by
with one, or at practice, Lender Lender
Lender's request obtains endorsement
two, Independent at last Initial TIC
Directors, ii) SPE LP transfer
with SPE Corp as
GP, or iii) SPE LLC
with SPE Corp as
managing member.
Acceptable if SPE
single-member DE
LLC with springing
member
Resource Real Estate - Subsequent TIC Transfers Either i) SPE Corp As required by As required by
with one, or at Lender Lender
Lender's request
two, Independent
Directors, ii) SPE LP
with SPE Corp as GP,
or iii) SPE LLC with
SPE Corp as
managing member.
Acceptable if SPE
single-member DE
LLC with springing
member
Sponsor for Colony Grove Apartments TIC Agreement New TIC Borrower Required Required
must be SPE with
org. docs. approval
by Lender
- -----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Cut-Off Date
TIC SYNDICATOR Loan Seller Loan Number Number RE COUNSEL Property Name Balance
- -----------------------------------------------------------------------------------------------------------------------------------
Resource Real Estate Wachovia 21 502860552 Jay Suhr Little Rock Pool $40,000,000
NNN Wachovia 35 502859537 James Tucker Siena Office Park $28,620,000
NNN Wachovia 66 502860360 James Tucker Chartwell Court Apartments $12,450,000
SCI Wachovia 72 502860001 James Tucker Parmer-McNeil Plaza Shopping Center $11,050,000
Fully Syndicated Wachovia 27 509850640 Sharon Hwang Town Center Apartments $34,000,000
Fully Syndicated Wachovia 30 502859429 Tim Gilbert Environs Residential Rental Community $31,000,000
Fully Syndicated Wachovia 40 502859857 Corey Tessler 141 5th Avenue $25,000,000
Fully Syndicated Wachovia 77 502860703 Tim gilbert Colony Grove Apartments $10,700,000
Fully Syndicated Wachovia 121 502860284 Corey Tessler North Tucker Garage $3,500,000
- -----------------------------------------------------------------------------------------------------------------------------------
Tenants-In-
Mortgage Loan % of Loan Common Maximum # of Fully
Number Pool Group # SPONSOR (Y/N)? members Syndicated?
- -----------------------------------------------------------------------------------------------------------------------------------
502860552 1.0% 2 Resource Real Estate Holdings, Inc. Y 35 N
502859537 0.7% 1 Triple Net Properties, LLC Y 35 N
502860360 0.3% 2 Triple Net Properties, LLC Y 35 N
502860001 0.3% 1 SCI Real Estate Investments, LLC Y 35 N
509850640 0.9% 2 HGGP Capital II, LLC Y 2 Y
502859429 0.8% 2 Anthony Zanze Y 30 Y
502859857 0.7% 1 141 5th Avenue Retail I, LLC Y 2 Y
502860703 0.3% 2 Mark R. Hamilton, Anthony O. Zanze and Kurt E. Houtkooper Y 30 Y
502860284 0.1% 1 North Tucker Parking Equities LLC Y 2 Y
EXHIBIT AA
FORM OF OFFICER'S CERTIFICATE
Wachovia Bank, National Association
8739 Research Drive, URP4
Charlotte, NC 28288-1075
Phone: (704) 593-7320
Fax: (704) 715-0036
[WACHOVIA SECURITIES LOGO]
[Date]
VIA EMAIL AND OVERNIGHT MAIL
[Addressee]
RE: Depositor: Wachovia Commercial Mortgage Securities, Inc.
Pool: WBCMT 2007-C32
Borrower:
Property:
Control #:
WB Loan #:
Current Loan Amount: $
Proposed TICs:
O F F I C E R' S C E R T I F I C A T E
Dear [____________]:
Wachovia Bank, National Association ("WB"), is the Master Servicer
on behalf of Wells Fargo Bank, N.A., as Trustee, in trust for the Holders of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C32.
Borrower has submitted for lender approval information pertaining to
the proposed transfer of Tenant in Common interests per Section [______] of the
Mortgage and Security Agreement dated [________]. In accordance with our
responsibilities as dictated by Section 3.08(a)(ii) of the Pooling and Servicing
Agreement dated June 1, 2007, WB has conducted its review and determined that
the proposed transfer meets the applicable requirements of Exhibit Z. The
results of our analysis can be found on the attached spreadsheet and the
supporting documents have been provided for your review. Accordingly, we are
recommending approval of the proposed transaction.
Sincerely,
Wachovia Bank, NA
Master Servicer
_____________________
Diana C. Stewart
Vice President
TIC Consent
Original Borrower
Loan #
Current UPB
TIC #
Proposed TIC
Purchase Price
Net Worth
TIC % Interest
Requirements
1. Timing & Notice Requirement
2. Approval of New Borrower
3. Accredited Investor
4. Sponsor control requirement
5. New Borrower Debt Liability
6. New Guarantor Requirement
7. Sponsor Release on Guaranty
8. General Pre-Conditions
9. Total Borrowers permitted
10. Required Closing Docs
11. Required Opinions
12. Application/Assumption Fees
Application Fee
Assumption Fee
13. MS/SS Assumption Fee Arrangement
MS portion of Assumption Fee
SS portion of Assumption Fee
12. SPE Requirement
13. Title Date-Down Endorsement
14. Insurance Endorsements
Attached
Purchase and Sale Agreement
Purchaser Questionnaire
Lender Questionnaire
Lender Minimum Qualifications Acknowledgement
Statement of Net Worth
Credit Check
Company/LLC/Trust Information
Settlement Statement
Transfer Deed/Membership Assignment
Partial Loan Assumption Agreement
TIC Indemnity Agreement
UCCs
Required Opinions