SUBSERVICING AGREEMENT
----------------------
GE Commercial Mortgage Corporation
Commercial Mortgage Pass Through Certificates
Series 2007-C1
Dated as of May 1, 2007
between
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
"Master Servicer"
and
BANK OF AMERICA, N.A.
"Subservicer"
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.......................................................
Section 1.01 Defined Terms..............................................
ARTICLE II RETENTION AND AUTHORITY OF SUBSERVICER ..........................
Section 2.01 Servicing Standard; Commencement of Servicing
Responsibilities ..........................................
Section 2.02 Subservicing...............................................
Section 2.03 Authority of Subservicer...................................
ARTICLE III SERVICES TO BE PERFORMED .......................................
Section 3.01 Services as Subservicer....................................
Section 3.02 Portfolio Manager..........................................
Section 3.03 Maintenance of Errors and Omissions and Fidelity
Coverage...................................................
Section 3.04 Delivery and Possession of Servicing Files.................
Section 3.05 Exchange Act Reporting and Regulation AB Compliance........
ARTICLE IV SUBSERVICER'S COMPENSATION AND EXPENSES.........................
Section 4.01 Subservicing Compensation..................................
ARTICLE V THE MASTER SERVICER AND THE SUBSERVICER..........................
Section 5.01 Subservicer Not to Assign, Merger or Consolidation of
the Subservicer............................................
Section 5.02 Liability and Indemnification of the Subservicer and
the Master Servicer........................................
Section 5.03 Representations and Warranties............................
ARTICLE VI EVENTS OF DEFAULT; TERMINATION..................................
Section 6.01 Events of Default..........................................
Section 6.02 Termination of Agreement...................................
ARTICLE VII MISCELLANEOUS PROVISIONS.......................................
Section 7.01 Amendment..................................................
Section 7.02 Governing Law..............................................
Section 7.03 Notices....................................................
Section 7.04 Consistency with PSA; Severability of Provisions...........
Section 7.05 Inspection and Audit Rights................................
Section 7.06 Binding Effect; No Partnership; Counterparts...............
Section 7.07 Protection of Confidential Information.....................
Section 7.08 Construction...............................................
LIST OF EXHIBITS
Exhibit A Mortgage Loan Schedule
Exhibit B Remittance Report
Exhibit C Tax, Insurance, UCC and Letter of Credit Certification
THIS SUBSERVICING AGREEMENT dated as of May 1, 2007 (as it may be
amended or modified by the parties from time to time, this "Agreement") is
between KEYCORP REAL ESTATE CAPITAL MARKETS, INC., an Ohio corporation (together
with its successors and assigns, the "Master Servicer"), and BANK OF AMERICA,
N.A., a national banking association (together with its successors and assigns
permitted under this Agreement, the "Subservicer").
RECITALS
The following Recitals are a material part of this Agreement:
A. Pursuant to the Pooling and Servicing Agreement (the "PSA") dated
as of May 1, 2007, among GE Commercial Mortgage Corporation, as depositor,
KeyCorp Real Estate Capital Markets, Inc., as servicer no. 1, Bank of America,
N.A., as servicer no. 2, LNR Partners, Inc., as special servicer, and ▇▇▇▇▇
Fargo Bank, N.A., as trustee, with respect to the GE Commercial Mortgage
Corporation Commercial Mortgage Pass-Through Certificates, Series 2007-C1 (a
copy of which has been delivered to the Subservicer), the Master Servicer is
servicing the Mortgage Loans (as defined below) on behalf of the Trust (as
defined in the PSA).
B. The Master Servicer and the Subservicer desire to enter into an
agreement whereby the Subservicer shall perform certain of the Master Servicer's
servicing responsibilities with respect to the Mortgage Loans as more
specifically set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the matters set forth in the
foregoing Recitals and of the mutual promises contained in this Agreement, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Master Servicer and the Subservicer hereby agree as
follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.01 Defined Terms.
All capitalized terms not otherwise defined in this Agreement have
the meanings set forth in the PSA, and the following capitalized terms have the
respective meanings set forth below:
"Accepted Subservicing Practices": As defined in Section 2.01.
"Accounts": The Subservicer Certificate Account, Serviced Whole Loan
Custodial Accounts and Servicing Accounts maintained by the Subservicer under
this Agreement in the name of the Subservicer, "in trust for KeyCorp Real Estate
Capital Markets, Inc., as Servicer No. 1, for ▇▇▇▇▇ Fargo Bank, N.A., as
Trustee, on behalf of and in trust for the registered holders of GE Commercial
Mortgage Corporation Commercial Mortgage Pass-Through Certificates, Series
2007-C1."
"Additional Subservicing Compensation": As defined in Section 4.01.
"Back-up Certification": As defined in Section 3.05.
"Commission": The Securities and Exchange Commission or any
successor thereto.
"Event of Default": Any event of default as set forth in Section
6.01.
"Indemnified Parties": As defined in Section 3.05.
"MBAA": The Mortgage Bankers Association of America, or any
association or organization that is a successor thereto. If an organization or
association described in the preceding sentence of this definition does not
exist, "MBAA" shall be deemed to refer to such other association or organization
as shall be selected by the Master Servicer and reasonably acceptable to the
Subservicer.
"MBAA Website": The MBAA's internet website located at
"▇▇▇.▇▇▇▇.▇▇▇" or such other primary website as the MBAA may establish for
dissemination of its property inspection form.
"Mortgage Loan": Each of the mortgage loans that are the subject of
this Agreement and are identified on the Mortgage Loan Schedule and any related
Qualified Substitute Mortgage Loan.
"Mortgage Loan Schedule": The schedule of mortgage loans attached
hereto as Exhibit A, as amended from time to time, including to add any
Qualified Substitute Mortgage Loan as applicable.
"Property Inspection Report": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Standard Property Inspection Form" on the MBAA Website, or in such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the MBAA for commercial
mortgage securities transactions generally.
"PSA": As defined in the Recitals to this Agreement.
"Remittance Report": A report regarding any remittance made pursuant
to the terms and provisions of this Agreement, which report shall be delivered
electronically pursuant to this Agreement substantially in the form attached
hereto as Exhibit B (or in such other form as may be mutually agreeable to the
Master Servicer and the Subservicer from time to time).
"Responsible Officer": Any officer or employee of the Subservicer or
the Master Servicer, as the case may be, involved in or responsible for the
administration, supervision or management of this Agreement and whose name and
specimen signature appear on a list prepared by the party and delivered to the
other party, as such list may be amended from time to time by either party.
"SSA Certification Parties": As defined in Section 3.05.
"Subservicer Certificate Account": As defined in Section
3.01(a)(iii).
"Subservicer Remittance Date": The second Business Day prior to each
Distribution Date.
"Subservicing Fee": With respect to each Mortgage Loan, the fee
designated as such and payable to the Subservicer pursuant to Section 4.01.
"Subservicing Fee Rate": A rate per annum with respect to each
Mortgage Loan as set forth on the Mortgage Loan Schedule.
"Subservicing File": With respect to each Mortgage Loan, all
documents, information and records relating to such Mortgage Loan that are
necessary or appropriate to enable the Subservicer to perform its obligations
under this Agreement and any additional documents or information related thereto
maintained or created in any form by the Subservicer (which shall not include
any attorney-client privileged communications between the Subservicer and its
counsel), including all analysis, working papers, inspections reports, written
communications with any Mortgagor or other Person, and all other information
collected from or concerning any Mortgagor or the related Mortgaged Property in
the Subservicer's possession.
"Tax, Insurance, UCC and Letter of Credit Certification": A written
report certifying for the applicable quarterly period that all property taxes
and hazard insurance premiums that are due have been paid in full, that all UCC
liens, assignments or continuations are current and that all letters of credit
are current, which report shall be delivered electronically pursuant to this
Agreement substantially in the form attached hereto as Exhibit C (or in such
other form as may be mutually agreeable to the Master Servicer and the
Subservicer from time to time).
ARTICLE II
RETENTION AND AUTHORITY OF SUBSERVICER
--------------------------------------
Section 2.01 Servicing Standard; Commencement of Servicing
Responsibilities.
The Master Servicer hereby engages the Subservicer to perform, and
the Subservicer hereby agrees to perform, the servicing duties and obligations
of the Master Servicer under the PSA with respect to all of the Mortgage Loans
throughout the term of, and upon and subject to the terms, covenants, and
provisions of, this Agreement. The Subservicer shall service and administer the
Mortgage Loans pursuant to this Agreement for the benefit of the Master Servicer
and the Certificateholders (as a collective whole) in accordance with (i) any
and all applicable laws, (ii) the express terms of this Agreement and the
respective Mortgage Loans, and (iii) all requirements pertaining to the
performance of such services under the PSA, including the Servicing Standard.
The above-described servicing standards are referred to in this Agreement as
"Accepted Subservicing Practices".
Section 2.02 Subservicing.
To the extent necessary for the Subservicer to comply with
applicable laws, or if otherwise consented to by the Master Servicer, the
Subservicer may enter into any Subservicing agreement with another Subservicer
that would permit such Subservicer to perform any or all of the Subservicer's
servicing responsibilities under this Agreement as long as each subservicing
agreement complies with the requirements for subservicing agreements in PSA
Section 3.22; but the consent of the Master Servicer and the execution of a
subservicing agreement compliant with PSA Section 3.22 shall not be required to
engage a third party contractor to perform discrete ministerial tasks, including
inspections of Mortgaged Property. Notwithstanding any subservicing agreement,
the Subservicer shall remain directly obligated and primarily liable to the
Master Servicer for the servicing and administration of the Mortgage Loans in
accordance with the provisions of this Agreement without diminution of such
obligation or liability by virtue of such subservicing agreement to the same
extent and under the same terms and conditions as if the Subservicer were
servicing the Mortgage Loans alone.
Section 2.03 Authority of Subservicer.
(a) Except as otherwise provided in this Agreement and subject to
the terms of this Agreement and the Master Servicer's limitations of authority
as Master Servicer under the PSA, in performing its obligations under this
Agreement, the Subservicer shall have full power and authority to take any and
all actions in connection with such obligations that it deems necessary or
appropriate; but the Subservicer shall not take any of the following actions
with respect to any Mortgage Loan without obtaining the prior written consent of
the Master Servicer (which consent: (I) may be in the form of an asset business
plan approved in writing by the Master Servicer; (II) shall not be unreasonably
withheld; (III) shall be subject to the prior approval of the Special Servicer,
the Directing Certificateholder, the Rating Agencies and any other Person if so
required under the PSA, which approvals shall be requested by the Master
Servicer; and (IV) shall be consented to or denied by the Master Servicer within
ten (10) Business Days following the receipt by the Master Servicer of the
information described in clause (I) above along with relevant supporting
information (but, in the case of a consent, such consent may be conditioned on
any approval described in clause (III) above)):
(i) any releases or disbursements of reserve funds or related
letters of credit with respect to a Mortgaged Property securing a
Mortgage Loan (other than where (x) such Mortgage Loan is not listed
on PSA Schedule 12 and (y) the underlying Mortgage Loan documents in
connection with such release or disbursement provide that such
release or disbursement is automatic based on certain conditions set
forth in such Mortgage Loan documents);
(ii) any application of reserve funds or letters of credit
proceeds to reduce the principal balance of any Mortgage Loan unless
otherwise required to do so pursuant to the applicable Mortgage Loan
documents, applicable law, or the Accepted Subservicing Practices;
(iii) granting or withholding consent to, or the performance
of, any defeasance of a Mortgage Loan in accordance with PSA Section
3.20;
(iv) any modification, waiver, amendment or other action
contemplated by PSA Sections 3.08 or 3.20, of or with respect to any
Mortgage Loan, whether or not material, including any forgiveness of
principal, any change in the amount or timing of any payment of
principal or interest, maturity, extension rights, or prepayment
provisions or the substitution, full or partial release, or addition
of any collateral for any Mortgage Loan;
(v) granting or withholding consent to any transfer of
ownership of a Mortgaged Property or any transfer of any interest in
any Mortgagor or any owner of a Mortgaged Property and entering into
any assumption agreement in connection therewith;
(vi) granting or withholding consent to any request for
approval to encumber a Mortgaged Property with subordinate or other
financing or to encumber any interest in any Mortgagor or any owner
of a Mortgaged Property with mezzanine financing;
(vii) any determination of whether or not to release any
Insurance Proceeds and Condemnation Proceeds to the Mortgagor under
any Mortgage Loan;
(viii) any waiver of any Penalty Charge (except to the extent
the Subservicer is entitled to retain such Penalty Charge as
Additional Subservicing Compensation hereunder), Prepayment Premium
or Yield Maintenance Charge under any Mortgage Loan;
(ix) any action to initiate, prosecute and manage foreclosure
proceedings or other legal proceedings related thereto in connection
with any Mortgage Loan;
(x) with respect to any Mortgage Loan that has an anticipated
repayment date, after such date, taking any enforcement action
(prior to the date on which all principal and accrued interest have
been paid, other than requests for collection) for the payment of,
or the waiver of all or any portion of, the accrued additional or
excess interest in respect of such Mortgage Loan;
(xi) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to
any Mortgaged Property, or any termination or change, or consent to
the termination or change, of the franchise for any Mortgaged
Property operated as a hospitality property, or any consent to
leasing activity;
(xii) granting any consent to any request by a Mortgagor for
approval to incur additional indebtedness or to amend or modify its
organizational documents (other than, in each case, where the action
is not conditioned on obtaining the consent of the lender);
(xiii) any determination with respect to a Mortgage Loan as to
whether a default has occurred under the related Mortgage Loan
documents by reason of any failure on the part of the related
Mortgagor to maintain any insurance required under the related
Mortgage Loan documents;
(xiv) any waiver of any requirement in the related Mortgage
Loan documents to pay any fees or expenses, including any Rating
Agency fees or general out-of-pocket expenses that include Rating
Agency fees, in connection with an assumption of any Mortgage Loan
for which Rating Agency consent is required pursuant to PSA Section
3.08 (except for any fees that the Subservicer is entitled to retain
as Additional Subservicing Compensation hereunder); or
(xv) permitting, or performing a modification to permit, a
Principal Prepayment of a Mortgage Loan on a date other than its Due
Date.
(b) Notwithstanding anything in Section 2.03(a) to the contrary
(other than as described in Section 2.03(b)(vi) below with respect to defeasance
transactions), the Subservicer shall not be required to seek the consent of the
Master Servicer in order to approve the following modifications, waivers, or
amendments of any Mortgage Loan:
(i) approve routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to
any lease for less than the lesser of (A) 20,000 square feet and (B)
20% of the related Mortgaged Property;
(ii) approve a change of the property manager at the request
of the related Mortgagor, provided that (A) the successor property
manager is not affiliated with Mortgagor and is a nationally or
regionally recognized manager of similar properties, (B) the related
Mortgage Loan does not have an outstanding principal balance in
excess of $5,000,000 and (C) the subject Mortgaged Property does not
secure a Serviced Companion Loan;
(iii) approve any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such
financial statements are delivered no less than quarterly and within
60 days of the end of the calendar quarter;
(iv) approve annual budgets for the related Mortgaged
Property, provided that no such budget (A) 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 (B) provides for the
payment of any material expenses to any affiliate of the Mortgagor
(other than the payment of a management fee to any property manager
if such management fee is no more than the management fee in effect
on the Cut-Off Date);
(v) subject to other restrictions herein regarding Principal
Prepayments, waive any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(vi) subject to the Master Servicer's approval under Section
2.03(a)(iii), approve modifications, consents or waivers in
connection with a defeasance permitted by the terms of the related
Mortgage Loan if the Subservicer obtains 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;
(vii) consent to subject the related Mortgaged Property to an
easement or right-of-way for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of
the related Mortgage Loan to such easement or right-of-way, provided
that the Subservicer determines in accordance with the Servicing
Standard that such easement or right-of-way will not materially
interfere with the then-current use of the related Mortgaged
Property, the security intended to be provided by such Mortgage, or
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;
(viii) to the extent the Master Servicer is permitted under
the PSA, including PSA Section 3.02(a), waiving any Late Payment
Charges or Default Interest in connection with any delinquent
payment on any Mortgage Loan serviced under this Agreement; and
(ix) to the extent the Master Servicer is permitted under, and
subject to the terms of, PSA Section 3.08(f), processing initial
syndications of tenant-in-common interests that are specifically
permitted by and in accordance with the related loan documents for
any Mortgage Loan (other than a Non-Serviced Mortgage Loan) or
Serviced Whole Loan, that is not a Specially Serviced Mortgage Loan
(in which event the Subservicer shall deliver to the Special
Servicer (with a copy to the Master Servicer) the notices and
information required to be delivered by the Master Servicer under
such PSA Section 3.08(f));
provided however, if the Mortgage Loan is a Serviced Whole Loan, the Subservicer
must provide written notice of such modification, waiver and amendment to the
holder of the related Serviced Companion Loan to the extent required under the
related Co-Lender Agreement; provided further, that any such modification,
waiver or amendment (w) would not in any way affect a payment term of the
Certificates, (x) would not constitute a "significant modification" of such Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
constitute an Adverse REMIC Event or Adverse Grantor Trust Event (y) agreeing to
such modification, waiver or amendment would be consistent with Accepted
Subservicing Practices, and (z) agreeing to such modification, waiver or
amendment will not otherwise violate the terms, provisions or limitations of
this Agreement or any other document contemplated hereby.
The Subservicer shall (x) promptly notify the Master Servicer and
the Special Servicer of any requests not subject to this Section 2.03(b) or PSA
Section 3.20(a) and for which the Special Servicer is responsible pursuant to
PSA Section 3.20 and (y) deliver to the Master Servicer and the Special Servicer
(which delivery may be by electronic transmission in a format acceptable to the
Subservicer, the Master Servicer and the Special Servicer) a copy of the
request, and all information in the possession of the applicable Servicer that
the Special Servicer may reasonably request related thereto. The Subservicer
acknowledges and agrees that other than with respect to modifications, waivers
and consents specifically described in the prior paragraph, the Subservicer will
forward all requests for modifications, waivers and consents (upon its receipt
of notice of such requests) along with copies of the relevant Mortgage Loan
documents to the Master Servicer and the Special Servicer. The Subservicer shall
reasonably cooperate with the Special Servicer and shall provide the Special
Servicer with any additional information from the related Credit File that the
Special Servicer reasonably may request.
(c) Regardless of whether the consent or approval of the Master
Servicer is required pursuant to this Agreement, the Subservicer shall take any
reasonable action that is directed by the Master Servicer and relates to the
Subservicer's obligations under this Agreement; provided, however, that the
Subservicer shall not be obligated to take any such action to the extent that
the Subservicer determines in its reasonable discretion that such action: (i)
may cause a violation of applicable laws, regulations, codes, ordinances, court
orders or restrictive covenants with respect to any Mortgage Loan or Mortgaged
Property; (ii) may cause a violation of any term or provision of a Mortgage
Loan; or (iii) materially expands the scope of the Subservicer's
responsibilities under this Agreement or is inconsistent with the requirements
of this Agreement or the PSA, including the Servicing Standard.
ARTICLE III
SERVICES TO BE PERFORMED
------------------------
Section 3.01 Services as Subservicer.
With respect to each Mortgage Loan, the Subservicer shall, in
accordance with Accepted Subservicing Practices and subject to the supervision
of the Subservicer by the Master Servicer as set forth in this Agreement,
perform the following servicing activities on behalf of the Master Servicer:
(a) The Subservicer shall perform the duties and obligations with
respect to the Mortgage Loans that the Master Servicer is required to perform
under PSA Sections 3.01 (administration of the loans), 3.02 (collection of
mortgage loan payments), 3.03 (collection of taxes, assessments and similar
items; servicing accounts), 3.04(a) (certificate account), 3.04(f) (serviced
whole loan custodial accounts), 3.07 (insurance), 3.08 (enforcement of due on
sale and due on encumbrance clauses; assumption agreements), 3.10(a) (release of
files), 3.12(a) (inspections), 3.12(b) (financial statements), 3.15 (access to
certain information), 3.19(b) (notices to ground lessors); 3.20 (modifications,
waivers, amendments, and consents; defeasance), 3.21 (servicing transfers), 3.27
(co-lender agreements), 3.30 (certain matters regarding the serviced companion
loans and serviced pari passu loans), 3.33 (matters relating to certain mortgage
loans) and 3.34 (the Clarion LaGuardia Airport Hotel controlling holder), and
PSA Article XI (Exchange Act reporting and Regulation AB compliance), subject to
the following terms and conditions:
(i) the Subservicer will not have any obligation to make
Advances, but the Subservicer shall provide the Master Servicer not
less than five (5) Business Days' notice before the date on which
the Master Servicer is required to make any Servicing Advance with
respect to any Mortgage Loan; provided, that only two (2) Business
Days' notice will be required with respect to Servicing Advances
required to be made on an urgent or emergency basis (the Subservicer
to identify in writing with a reasonably detailed explanation any
such urgent or emergency basis to the Master Servicer at the time it
notifies the Master Servicer of the need to make the Advance);
(ii) with respect to each Mortgage Loan, the Subservicer
shall, consistent with Accepted Subservicing Practices, monitor the
related Mortgagor's insurance obligations in accordance with PSA
Section 3.07(a), and in the event a Mortgagor fails to maintain such
insurance, the Subservicer shall promptly (A) notify the Master
Servicer in writing of such Mortgagor's failure to maintain such
insurance and whether or not such insurance is available at
commercially reasonable rates, and (B) deliver to the Master
Servicer all related documents and other information; but the
Subservicer shall not be required to maintain insurance coverage on
a Mortgaged Property;
(iii) the Subservicer shall establish a certificate account
(the "Subservicer Certificate Account") meeting all of the
requirements of the Certificate Account maintained by the Master
Servicer under the PSA, and references to the Certificate Account in
PSA Section 3.04 constitute references to the Subservicer
Certificate Account; the Subservicer shall maintain and administer
one or more Serviced Whole Loan Custodial Accounts pursuant to and
meeting all of the requirements of PSA Section 3.04(f); and any
withdrawals from the Subservicer Certificate Account shall only be
made as specifically authorized under this Agreement;
(iv) the Subservicer may invest the funds in the Accounts in
one or more Permitted Investments on the same terms as the Master
Servicer may invest funds in the Certificate Account, the Servicing
Accounts and the Serviced Whole Loan Custodial Accounts under PSA
Section 3.06, and subject to the same restrictions and obligations
regarding maturity dates, gains, losses, possession of Permitted
Investments, and Permitted Investments payable on demand;
(v) Section 3.03 of this Agreement shall control with respect
to the Subservicer's obligation to maintain a fidelity bond and
errors and omissions insurance policy that satisfies the
requirements of PSA Section 3.07(c);
(vi) Section 4.01 of this Agreement shall control with respect
to which servicing fees and additional servicing compensation the
Subservicer may retain;
(vii) the Subservicer shall, within 55 days after the Closing
Date, deliver to the Master Servicer written evidence of each
notification to a ground lessor pursuant to PSA Section 3.19(b);
(viii) all notices, reports, certifications, and other
documentation that are required under this Agreement to be provided
by the Subservicer and are required under the PSA to be provided by
the Master Servicer to the Trustee, the Special Servicer, the
Depositor, any Mortgage Loan Seller, any Rating Agency, the
Directing Certificateholder, or any other Person shall be provided
by the Subservicer only to the Master Servicer and within the time
set forth in this Agreement (or if no such time is set forth, within
one (1) Business Day prior to the date on which the Master Servicer
is required to deliver such item to the applicable Person under the
PSA); and
(ix) the Subservicer shall not be responsible for any mortgage
loan pool-wide reporting, including preparing, signing and filing
with the Commission any reports, statements and information under
the PSA.
(b) The Subservicer shall promptly notify the Master Servicer of all
material collection and customer service issues and furnish the Master Servicer
with copies of all written communications regarding such material issues between
the Subservicer and any Mortgagor or any third party in connection with the
Subservicer's obligations under this Agreement, including any default notice
delivered to a Mortgagor.
(c) The Subservicer shall promptly notify the Master Servicer in
writing upon discovery or receipt of notice by the Subservicer of (i) the
occurrence of any event that causes, or with notice or the passage of time or
both would cause, any Mortgage Loan to become a Specially Serviced Mortgage
Loan; or (ii) any Document Defect or Breach.
(d) With respect to all servicing responsibilities of the Master
Servicer under the PSA that are not being performed by the Subservicer under
this Agreement, the Subservicer shall cooperate with the Master Servicer to
facilitate the timely performance of such servicing responsibilities.
(e) No later than ten (10) Business Days after each Distribution
Date, the Subservicer shall deliver to the Master Servicer a statement prepared
by the Subservicer setting forth the status of the Subservicer Certificate
Account as of the close of business on the last Business Day of the related Due
Period and showing the aggregate amount of deposits into and withdrawals from
the Subservicer Certificate Account for each category of deposit specified in
PSA Section 3.04 and each category of withdrawal specified in PSA Section 3.05
for such Collection Period.
(f) Not later than 1:00 p.m. (NYC time) on the first Business Day
following each Determination Date, beginning in June 2007, the Subservicer shall
prepare and deliver or cause to be delivered to the Master Servicer, in a
computer-readable medium downloadable by the Master Servicer (or, at the Master
Servicer's written request, in a form mutually acceptable to the Master Servicer
and the Subservicer, including on a loan-by-loan basis), the CMSA Loan Periodic
Update File, the CMSA Property File, the CMSA Financial File, the CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, the CMSA
Delinquent Loan Status Report, the CMSA Comparative Financial Status Report, the
CMSA Loan Level Reserve-LOC Report, the CMSA Total Loan Report, the CMSA Advance
Recovery Report and the CMSA Servicer Watch List, in each case providing the
most recent information with respect to the Mortgage Loans as of the close of
business on the related Determination Date (and which, in each case, if
applicable, will identify each Mortgage Loan by loan number and property name).
(g) Commencing with the calendar quarter ending June 30, 2007, the
Subservicer shall use its reasonable efforts to promptly collect from each
related Mortgagor quarterly and annual operating statements, budgets, and rent
rolls with respect to each of the Mortgage Loans, and quarterly and annual
financial statements of each related Mortgagor, whether or not delivery of such
items is required pursuant to the terms of the related Mortgage Loan documents,
but to the extent such action is consistent with applicable law and Accepted
Subservicing Practices. The Subservicer shall deliver electronically to the
Master Servicer copies of all of the foregoing items so collected in an imaged
format within 30 days following the Subservicer's receipt of such items, in each
case together with the CMSA Operating Statement Analysis Reports and CMSA NOI
Adjustment Worksheets required by Section 3.01(h) below.
(h) The Subservicer shall maintain a CMSA Operating Statement
Analysis Report and CMSA NOI Adjustment Worksheet with respect to each Mortgaged
Property. Commencing with the calendar quarter ending June 2007, within 30 days
after receipt by the Subservicer of any annual or quarterly operating statements
or rent rolls with respect to any Mortgaged Property (and with respect to the
fiscal quarter ending June 2007, beginning in September 2007), the Subservicer
shall, based upon such operating statements or rent rolls received, prepare (or,
if previously prepared, update) the CMSA Operating Statement Analysis Report and
the CMSA NOI Adjustment Worksheet as of the end of the preceding fiscal year or
fiscal quarter, as the case may be, and shall remit to the Master Servicer
electronically PDF copies thereof (using a naming convention for such PDF files
that is reasonably acceptable to the Master Servicer) together with (if not
otherwise delivered pursuant to this Agreement) PDF copies of the underlying
operating statements and rent rolls.
(i) Each month by 3:00 p.m. (NYC time) on the Subservicer Remittance
Date, the Subservicer shall remit to the Master Servicer, pursuant to wiring
instructions from the Master Servicer, all amounts on deposit in the Subservicer
Certificate Account maintained by the Subservicer as of the close of business on
the Business Day immediately preceding the Subservicer Remittance Date. In
addition, the Subservicer shall remit to the Master Servicer within one (1)
Business Day after receipt any delinquent payments on the Mortgage Loans
received by the Subservicer. Each of the foregoing remittances of funds (A)
shall be accompanied by a Remittance Report; and (B) may be net of any
Subservicing Fees due and payable to the Subservicer and payments in the nature
of Additional Subservicing Compensation.
(j) The Subservicer shall prepare or have prepared, and deliver to
the Master Servicer, a Property Inspection Report for each inspection performed
by it or on its behalf, in each case within 35 days following the completion of
the related inspection by the Subservicer or a third party at the Subservicer's
request.
(k) The Subservicer shall provide the Master Servicer with any
reports and other information (in the Subservicer's possession or to the extent
readily obtainable and as reasonably requested by the Master Servicer) with
respect to the servicing of the Mortgage Loans by the Subservicer under this
Agreement in order for the Master Servicer to perform its duties under the PSA.
(l) Within fifteen (15) days following the end of each calendar
quarter, the Subservicer shall prepare and deliver to the Master Servicer the
Tax, Insurance, UCC and Letter of Credit Certification.
(m) Notwithstanding anything contained in this Agreement to the
contrary, the Subservicer shall perform all of the remittance, reporting and
correspondence duties allocated to the Master Servicer under the Pooling and
Servicing Agreement (and related intercreditor agreement, co-lender agreement or
similar agreement) with respect to any Serviced Companion Loan related to any
Mortgage Loan serviced hereunder (including without limitation, providing
reasonable cooperation with any servicer or trustee of any securitization trust
into which any Serviced Companion Loan may be placed to facilitate the
securitization thereof). In connection with any remittances to a holder of a
Companion Loan (or its designee), the Subservicer shall promptly provide written
notice to the Master Servicer. To the extent not inconsistent with its duties
under the Pooling and Servicing Agreement, the Master Servicer shall reasonably
cooperate with the Subservicer in corresponding or otherwise dealing with any
holder of a Serviced Companion Loan, including to enforce any rights or remedies
or otherwise pursue any payment obligation under the related Co-Lender
Agreements.
(n) The Subservicer shall not, without the Trustee's written
consent, (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating the Subservicer's representative capacity or (ii) take
any action with the intent to cause, and which actually does cause, the Trustee
to be registered to do business in any state.
Section 3.02 Portfolio Manager.
(a) The Subservicer shall designate a portfolio manager and other
appropriate personnel to receive documents and communications from the Master
Servicer and to provide assistance to the Master Servicer consistent with the
Master Servicer's supervisory authority over the Subservicer under this
Agreement.
(b) The Master Servicer shall designate a portfolio manager and
other appropriate personnel to receive documents and communications from the
Subservicer and to provide to the Subservicer information, materials and
correspondence relating to the Mortgage Loans and the related Mortgagors which
may be necessary or appropriate to enable the Subservicer to perform its
obligations under this Agreement.
Section 3.03 Maintenance of Errors and Omissions and Fidelity
Coverage.
The Subservicer shall obtain and maintain with Qualified Insurers,
at its own expense, and keep in full force and effect throughout the term of
this Agreement, a fidelity bond and an errors and omissions insurance policy
covering the Subservicer's officers and employees acting on behalf of the
Subservicer in connection with its activities under this Agreement in form and
amount that satisfies the fidelity bond and errors and omissions insurance
policy requirements under PSA Section 3.07(c). The Subservicer shall cause to be
delivered to the Master Servicer from time to time upon the Master Servicer's
request a certificate of insurance or other evidence of such bond and insurance.
The Subservicer shall promptly, but in any event not later than 10 days after it
receives notice, notify the Master Servicer of any potential or actual
cancellation or termination of, or any material change to, such fidelity bond or
errors and omissions insurance. The Subservicer 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 Subservicer. So long as the long-term unsecured debt obligations of the
Subservicer (or its direct or indirect parent company) are rated not lower than
"A2" from ▇▇▇▇▇'▇ and "A" from S&P, the Subservicer may self-insure with respect
to either or both of the fidelity bond coverage and the errors and omissions
coverage required as described above, in which case it shall not be required to
maintain an insurance policy with respect to such coverage.
Section 3.04 Delivery and Possession of Servicing Files.
The Subservicer hereby acknowledges possession of the Subservicing
Files and acknowledges and agrees that the Master Servicer has never previously
had possession of or control over the Subservicing Files. The contents of each
Subservicing File are and shall be held in trust by the Subservicer for the
benefit of the Trust as the owner thereof; the Subservicer's possession of the
contents of each Subservicing File is for the sole purpose of servicing the
related Mortgage Loan; and such possession by the Subservicer shall be in a
custodial capacity only. The Subservicer shall release its custody of the
contents of any Subservicing File only in accordance with written instructions
from the Master Servicer, and upon request of the Master Servicer, the
Subservicer shall deliver to the Master Servicer the requested Subservicing File
or a copy of any document contained therein.
Section 3.05 Exchange Act Reporting and Regulation AB Compliance.
(a) Generally. Without limiting any other provision of this
Agreement, the Subservicer shall timely observe and perform each of the duties
and obligations that are required to be performed by, or that the Master
Servicer is required to cause or use efforts to cause the Subservicer to perform
as, an Additional Servicer or Servicing Function Participant (including as a
Reporting Servicer) under PSA Article XI. The Subservicer shall simultaneously
deliver to the Master Servicer a copy of any report, document or other
information delivered by the Subservicer to the Trustee, the Depositor or any
other Person in connection with the foregoing.
Without limiting any other provision of this Section 3.05, the
Subservicer shall (i) reasonably cooperate with the Master Servicer, the
Trustee, and the Depositor in connection with the Trustee's and the Depositor's
good faith efforts to satisfy the Trust's reporting requirements under the
Exchange Act, (ii) upon the request of the Master Servicer, the Depositor or the
Trustee, promptly provide to such requesting Person any information in its
possession as is necessary or appropriate for the Master Servicer, the Depositor
or the Trustee, as applicable, to prepare fully and properly any report required
under the Exchange Act with respect to the Trust in accordance with the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder, (iii) provide the reports, certifications and other information
contemplated by this Section 3.05 and PSA Article XI to any other servicer,
depositor or trustee of any securitization involving any Serviced Companion
Loan(s) to facilitate compliance with the Securities Act, the Exchange Act, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and, in each case, the rules and regulations of the
Commission thereunder, and (iv) if the Subservicer is terminated or resigns
pursuant to the terms of this Agreement, provide the reports and certifications
(annual or otherwise) and other information required by this Section 3.05 with
respect to the period of time that the Subservicer was subject to this
Agreement. The Subservicer acknowledges and agrees that the information to be
provided by it (or by any Servicing Representative acting on its behalf
hereunder) pursuant to or as contemplated by this Section 3.05 or PSA Article XI
is intended to be used in connection with the preparation of any reports
required by the Exchange Act with respect to the Trust.
(b) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification. The Subservicer shall (in addition
to the delivery of a Performance Certification in its capacity as a Reporting
Servicer under PSA Section 11.08) deliver to the Master Servicer, no later than
March 1 of each year (with a grace period through March 10) in which the Trust
is subject to the reporting requirements of the Exchange Act for the preceding
fiscal year (and otherwise within a reasonable period of time upon request), a
certification substantially in the form of PSA Exhibit U-2 (a "Back-up
Certification"), on which the Master Servicer and the Master Servicer's
officers, directors, members, managers, employees, agents and Affiliates
(collectively, the "SSA Certification Parties") can rely. The Subservicer shall,
if it is terminated or resigns pursuant to the terms of this Agreement, provide
a Back-up Certification to the Master Servicer with respect to the period of
time it was subject to this Agreement. Without limiting the foregoing, each
Back-up Certification shall include (x) a reasonable reliance statement by the
Subservicer enabling the SSA Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 3.05(c), (ii) annual report on
assessment of compliance with the Servicing Criteria provided pursuant to
Section 3.05(d) and (iii) registered public accounting firm attestation report
provided pursuant to Section 3.05(e) and (y) a certification that each such
annual report on assessment of compliance discloses any material instances of
noncompliance described to the Subservicer's registered public accounting firm
to enable such accountants to render the attestation provided for in Section
3.05(e).
(c) Annual Compliance Statement. The Subservicer shall deliver to
the Master Servicer, no later than March 1 of each year (with a grace period
through March 10) (and otherwise within a reasonable period of time upon
request), an Officer's Certificate (in a mutually agreeable format) stating, as
to the signer thereof, that (A) a review of the Subservicer's activities during
the preceding fiscal year or portion thereof and of the Subservicer's
performance under this Agreement, has been made under such officer's supervision
and (B) to the best of such officer's knowledge, based on such review, the
Subservicer has fulfilled all its obligations under this Agreement, 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
Master Servicer and the Depositor shall have the right to review the Officer's
Certificate and consult with the Subservicer as to the nature of any failures by
the Subservicer in the fulfillment of any of its obligations under this
Agreement. So long as it has received written confirmation from the Master
Servicer that the Trust is not subject to the reporting requirements of the
Exchange Act for the preceding fiscal year, the Subservicer shall not be
required to deliver such Officer's Certificate to the Master Servicer until the
Business Day prior to the date on which the Master Servicer is required to
deliver its Officer's Certificate under the PSA.
(d) Annual Reports on Assessment of Compliance with Servicing
Criteria.
(i) The Subservicer shall deliver to the Master Servicer, no
later than March 1 of each year (with a grace period through March
10) (and otherwise within a reasonable period of time upon request),
a report (in a mutually agreeable format) on an assessment of
compliance with the Relevant Servicing Criteria for the Trust's
preceding fiscal year that contains (A) a statement by the
Subservicer of its responsibility for assessing compliance with the
Relevant Servicing Criteria, (B) a statement that the Subservicer
used the Servicing Criteria to assess its compliance with the
Relevant Servicing Criteria, (C) the Subservicer's assessment of
compliance with the Relevant Servicing Criteria as of and for the
period ending the end of the fiscal year of the Trust covered by the
Form 10-K required to be filed pursuant to the PSA (including, if
there has been any material instance of noncompliance with the
Relevant Servicing Criteria, a discussion of each such failure and
the nature and status thereof), and (D) a statement that a
registered public accounting firm has issued an attestation report
on the Subservicer's assessment of compliance with the Relevant
Servicing Criteria as of and for such period. The Master Servicer
and the Depositor shall have the right to review the report and
consult with the Subservicer as to the nature of any material
instance of noncompliance by the Subservicer with the Relevant
Servicing Criteria in the fulfillment of any of the Subservicer's
obligations under this Agreement. So long as it has received written
confirmation from the Master Servicer that the Trust is not subject
to the reporting requirements of the Exchange Act for the preceding
fiscal year, the Subservicer shall not be required to deliver such
report to the Master Servicer until the Business Day prior to the
date on which the Master Servicer is required to deliver its report
under the PSA. Each assessment of compliance and related attestation
contemplated by Section 3.05(e) must be available for general use
and may not contain restricted use language.
(ii) Within three (3) Business Days following the end of each
fiscal year for which the Trust is subject to the reporting
requirements of the Exchange Act (and otherwise within a reasonable
period of time upon request), the Subservicer shall deliver to the
Master Servicer the name and address of each Servicing Function
Participant and subservicer engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant or
subservicer. The Subservicer shall, when it delivers its report on
assessment under Section 3.05(d)(i), to the extent received, deliver
each report on assessment (and the related accountants' attestation)
of each Servicing Function Participant and subservicer engaged by
it.
(e) Annual Independent Public Accountants' Attestation. The
Subservicer shall cause a registered public accounting firm that is a member of
the American Institute of Certified Public Accountants to, no later than March 1
of each year (with a grace period through March 10) (and otherwise within a
reasonable period of time upon request), furnish a report to the Master Servicer
for the preceding fiscal year to the effect that (i) it has obtained a
representation regarding certain matters from the management of the Subservicer
that includes an assessment from the Subservicer of its compliance with the
Relevant Servicing Criteria and (ii) on the basis of an examination conducted by
such firm in accordance with standards for attestation engagements issued or
adopted by the Public Company Accounting Oversight Board, it is expressing an
opinion as to whether the Subservicer's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding the Subservicer's assessment of compliance with the
Relevant Servicing Criteria. If an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Such report must (i) be available for general use
and not contain restricted use language and (ii) if required to be filed with
the Commission under applicable law, include the consent and authorization of
such accounting firm for the filing of such report with the Commission. The
Master Servicer and the Depositor shall have the right to review the report and
consult with the Subservicer as to the nature of any material instance of
noncompliance by the Subservicer with the Relevant Servicing Criteria in the
fulfillment of any of the Subservicer's obligations under this Agreement. So
long as it has received written confirmation from the Master Servicer that the
Trust is not subject to the reporting requirements of the Exchange Act for the
preceding fiscal year, the Subservicer shall not be required to deliver such
report to the Master Servicer until the Business Day prior to the date on which
the Master Servicer is required to deliver its report under the PSA.
(f) Exchange Act Reporting Indemnification.
(i) The Subservicer shall indemnify and hold harmless each
Certification Party, the Trustee, the Depositor, the Master Servicer
and their respective directors, officers, members, managers,
employees, agents and Affiliates and each other Person that controls
any such entity within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the
"Indemnified Parties") from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments and other costs and expenses incurred by such
Indemnified Party (including the costs of investigation, legal
defense and any amounts paid in settlement of any claim or
litigation) arising out of (x) the failure to perform its
obligations to the Master Servicer, the Depositor (or any other
depositor related to a securitization involving any Serviced
Companion Loan) or Trustee (or any other trustee related to a
securitization involving any Serviced Companion Loan) under this
Section 3.05 or PSA Article XI by the time required after giving
effect to any applicable grace period and cure period or (y) the
failure of any Servicing Function Participant or Additional Servicer
retained by it to perform its obligations to the Master Servicer,
the Depositor (or any other depositor related to a securitization
involving any Serviced Companion Loan) or Trustee (or any other
trustee related to a securitization involving any Serviced Companion
Loan) under this Section 3.05 or PSA Article XI by the time required
after giving effect to any applicable grace period and cure period.
(ii) If the indemnification provided for in this Section
3.06(f) is unavailable or insufficient to hold harmless any
Indemnified Party, then the Subservicer shall contribute to the
amount paid or payable to such Indemnified Party in such proportion
as is appropriate to reflect the relative fault of the Subservicer
on the one hand and the Indemnified Party on the other in connection
with a breach of the Subservicer's obligations under this Section
3.05 or PSA Article XI.
(g) Amendments; Expenses; Subservicers. This Section 3.05 may be
amended by the parties for purposes of complying with Regulation AB or to
conform to standards developed within the commercial mortgage-backed securities
market, notwithstanding anything to the contrary contained in this Agreement.
The Subservicer's obligations under this Section 3.05 shall be performed by it
in all cases at its own expense. The Subservicer shall cause any subservicing
agreement entered into by it pursuant to Section 2.02 to contain provisions
requiring the related subservicer to perform the obligations of the Subservicer
under this Section 3.05 (including requirements to provide the indemnification
and contribution obligations set forth in Section 3.05(f)).
ARTICLE IV
SUBSERVICER'S COMPENSATION AND EXPENSES
---------------------------------------
Section 4.01 Subservicing Compensation.
(a) As compensation for its activities under this Agreement, the
Subservicer shall be entitled to receive the Subservicing Fee with respect to
each Mortgage Loan (commencing on such Mortgage Loan's Due Date in June 2007)
unless and until a Liquidation Event occurs with respect to that Mortgage Loan.
As to each Mortgage Loan, the Subservicing Fee shall accrue at the related
Subservicing Fee Rate on the basis of a 360 day year with twelve 30 day months
(or, in the event that a Principal Prepayment in full or other Liquidation Event
occurs with respect to such Mortgage Loan on a date that is not a Due Date, on
the basis of the actual number of days to elapse from and including the most
recently preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Event in a month consisting of 30 days) and shall be
computed on the basis of the same principal amount as interest accrues from time
to time on such Mortgage Loan. The accrual of the Subservicing Fee with respect
to any Mortgage Loan: (i) shall (except with a Companion Loan) be suspended on
the date such Mortgage Loan becomes a Specially Serviced Loan pursuant to the
PSA and thereafter resume on the date such Mortgage Loan becomes a Corrected
Loan; and (ii) shall cease if a Liquidation Event occurs in respect of such
Mortgage Loan. Subservicing Fees earned with respect to any Mortgage Loan shall
be payable monthly from payments of interest on such Mortgage Loan.
The Subservicer shall be entitled to recover unpaid Subservicing
Fees in respect of any Mortgage Loan out of the portion of any related Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds allocable as interest on
such Mortgage Loan to the extent the Master Servicer is permitted to recover
unpaid Master Servicing Fees to which it is entitled under PSA Section 3.11(a).
The Subservicer's right to receive the Subservicing Fees to which it
is entitled may not be transferred in whole or in part except in connection with
the transfer of all of the Subservicer's responsibilities and obligations under
and pursuant to this Agreement and except as otherwise expressly provided in
this Agreement.
(b) The Subservicer shall also be entitled to withdraw from the
Subservicer Certificate Account and retain, as additional servicing compensation
(the "Additional Subservicing Compensation"), subject to any offset provided in
the PSA (including offsets for interest on Advances, inspection costs and
Additional Trust Fund Expenses), the following items:
(i) 100% of any and all Penalty Charges accrued on and
collected with respect to each Mortgage Loan that is not a Specially
Serviced Mortgage Loan, but only to the extent actually paid by the
related Mortgagor and only to the extent that all amounts then due
and payable with respect to the related Mortgage Loan (including
interest on Advances) have been paid and are not needed to first
reimburse the Trust Fund for (A) additional expenses that have been
incurred by the Trust Fund (other than Special Servicing Fees,
Workout Fees and Liquidation Fees) in connection with such Mortgage
Loan that have been paid since the prior Determination Date and (B)
interest on Advances previously paid to the Master Servicer or
Trustee, as applicable, that has accrued since the prior
Determination Date with respect to the related Mortgage Loan;
(ii) 50% of any and all modification fees, extension fees,
consent fees, release fees, substitution fees, waiver fees, fees
paid in connection with defeasance, and earn-out fees actually paid
by a Mortgagor with respect to each Mortgage Loan that is not a
Specially Serviced Mortgage Loan, in each case to the extent the
Subservicer and not the Special Servicer, has performed the related
modification, consent, waiver, earnout, defeasance or similar
action, as applicable, in accordance with the PSA (in particular,
subject to the limitations on the modifications, consents and
waivers that may be performed by the Master Servicer or Subservicer
set forth in Section 3.20 of the PSA); provided that, if the Special
Servicer's consent is not required pursuant to the terms of the PSA
in connection with the underlying servicing action, then the
Subservicer is entitled to receive 100% of such fees;
(iii) 100% of any and all assumption application fees actually
paid by a Mortgagor with respect to each Mortgage Loan that is not a
Specially Serviced Mortgage Loan;
(iv) 25% of any and all assumption fees actually paid by a
Mortgagor with respect to each Mortgage Loan that is not a Specially
Serviced Mortgage Loan;
(v) 100% of any and all charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient
funds, and other loan processing fees actually paid by a Mortgagor
with respect to each Mortgage Loan that is not a Specially Serviced
Mortgage Loan;
(vi) 100% of any and all interest or other income earned on
deposits in the Accounts maintained by the Subservicer (but only to
the extent of the Net Investment Earnings, if any, with respect to
any such Account for each Due Period and, further, in the case of a
Servicing Account, only to the extent such interest or other income
is not required to be paid to any Mortgagor under applicable law or
under the related Mortgage); and
(vii) notwithstanding the foregoing, 100% of any and all
assumption fees and other types of servicing compensation described
in clauses (i)-(vi) allocable solely to the Companion Loans (it
being understood that any such compensation, and any such fees
allocable to the related Mortgage Loan (i.e. the senior loan of the
related split loan structure contained in the Trust) shall be paid
in accordance with the foregoing priorities in the immediately
preceding clauses (i)-(vi)),
in each case, only to the extent the Master Servicer is entitled to retain those
amounts as additional master servicing compensation under the PSA.
(c) The Subservicer shall promptly remit to the Master Servicer, in
accordance with this Agreement, all amounts received with respect to the
Mortgage Loans (including each of those that become a Specially Serviced
Mortgage Loan or an REO Mortgage Loan) that the Subservicer is not entitled to
retain pursuant to this Agreement.
(d) The Subservicer shall pay all expenses incurred by it in
connection with its servicing activities under this Agreement and shall not be
entitled to reimbursement thereof except as otherwise specifically provided for
in this Agreement or in the PSA.
ARTICLE V
THE MASTER SERVICER AND THE SUBSERVICER
---------------------------------------
Section 5.01 Subservicer Not to Assign, Merger or Consolidation of
the Subservicer.
(a) Except as otherwise provided in this Section or Section 2.02,
the Subservicer shall not assign this Agreement for any reason or the servicing
under this Agreement or delegate its rights or duties under this Agreement or
any portion thereof, or be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in any such case
(i) other than to or with any direct or indirect subsidiary of Bank of America,
N.A. or (ii) without the prior written consent of the Master Servicer (which
consent shall not be unreasonably withheld or delayed). Any such assignee, or
any such Person into which the Subservicer may be merged or consolidated, or any
entity resulting from any merger or consolidation to which the Subservicer may
be a party, or any Person succeeding to the business of the Subservicer, shall
be the successor of the Subservicer under this Agreement and shall be deemed to
have assumed all of the liabilities of the Subservicer under this Agreement. The
Master Servicer's consent to any such assignment, merger, consolidation, or
other transfer (if granted) may be conditioned on: (i) the Master Servicer's
receipt of written confirmation (A) to the Trustee by each Rating Agency (at the
expense of the Subservicer) that such assignment or succession will not result
in an Adverse Rating Event with respect to any Class of rated Certificates, and
(B) that such assignee, successor, or surviving Person is an approved
conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer; and (ii) the Master Servicer's receipt of an agreement
executed by such assignee, successor, or surviving Person pursuant to which,
among other things, it makes the applicable representations and warranties set
forth in Section 5.03 and assumes the due and punctual performance and
observance of each covenant and condition to be performed and observed by the
Subservicer under this Agreement from and after the date of such agreement.
(b) The Subservicer shall not resign without giving the Master
Servicer sixty (60) days prior written notice thereof under this Agreement.
(c) The Subservicer shall: (i) maintain in full effect its
existence, rights, and good standing under the laws of the United States; (ii)
maintain its authorization to transact business in the state or states in which
the related Mortgaged Properties are situated if and to the extent required by
applicable law to ensure the enforceability of the Mortgage Loans; (iii) not
jeopardize its ability to (A) do business in each jurisdiction in which one or
more of the Mortgaged Properties are located, (B) protect the validity and
enforceability of this Agreement, the PSA, the Certificates, or any of the
Mortgage Loans, or (C) perform its respective duties and obligations under this
Agreement; and (iv) be an approved conventional seller/servicer of mortgage
loans for FHLMC or FNMA or a HUD-Approved Servicer.
Section 5.02 Liability and Indemnification of the Subservicer and
the Master Servicer.
(a) Neither the Subservicer nor any of the shareholders, directors,
officers, members, managers, agents, or employees of the Subservicer shall be
under any liability to the Master Servicer for any action taken, or for
refraining from the taking of any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Subservicer or any such Person against any breach of a
representation or warranty made in this Agreement, or against any expense or
liability specifically required to be borne thereby without right of
reimbursement pursuant to the terms of this Agreement or imposed on the
Subservicer pursuant to Section 2.01 for a breach of the Accepted Subservicing
Practices, or against any liability which would otherwise be imposed by reason
of misfeasance, bad faith, fraud, negligence, or willful violation of applicable
law in the performance of its obligations or duties under this Agreement or by
reason of the negligent disregard of its obligations or duties under this
Agreement. The Subservicer and any shareholder, director, officer, member,
manager, agent, or employee of the Subservicer may rely in good faith on any
document of any kind that, prima facie, is properly executed and submitted by
any appropriate Person respecting any matters arising under this Agreement.
(b) The Master Servicer shall indemnify and hold harmless the
Subservicer and any shareholder, director, officer, member, manager, agent or
employee of the Subservicer from and against any loss, liability, penalty, fine,
forfeiture, cost, or expense (including reasonable legal fees and expenses)
incurred in connection with any legal action or claim incurred by reason of the
Master Servicer's (i) willful misfeasance, bad faith, or negligence in the
performance of any of its obligations or duties under this Agreement; (ii)
breach of any of its covenants, obligations, or duties under this Agreement; or
(iii) willful violation of applicable law in the performance of any of its
obligations or duties under this Agreement. The Master Servicer agrees to use
reasonable efforts to pursue the Trust for indemnification against any loss,
liability, or expense incurred by the Subservicer in connection with the
performance of the Subservicer's duties and obligations under this Agreement as
to which the PSA grants to the Master Servicer's agents a right to
indemnification from the Trust Fund.
(c) The Subservicer shall indemnify and hold harmless the Master
Servicer and any shareholder, director, officer, member, manager, agent, or
employee of the Master Servicer from and against any loss, liability, penalty,
fine, forfeiture, cost, or expense (including reasonable legal fees and
expenses) incurred in connection with any claim or legal action incurred by
reason of the Subservicer's (i) breach of any representation or warranty made by
the Subservicer in this Agreement; (ii) willful misfeasance, bad faith, or
negligence in the performance of any of its obligations or duties under this
Agreement; (iii) breach of any of its covenants, obligations, or duties under
this Agreement; or (iv) willful violation of applicable law in the performance
of any of its obligations or duties under this Agreement. In addition, the
Subservicer shall indemnify the Master Servicer and the Trustee (and any
shareholder, director, officer, member, manager, agent, or employee of the
Master Servicer or the Trustee) for any and all reasonable out-of-pocket costs,
liabilities and expenses incurred by any such Person in connection with the
negligent or willful misuse of any power-of-attorney obtained by the Subservicer
from the Trustee.
(d) The Subservicer shall not be under any obligation to appear in,
prosecute, or defend any legal action unless such action is related to its
respective duties under this Agreement and, except in the case of a legal action
the costs of which the Subservicer is specifically required hereunder to bear,
in the Subservicer's opinion does not involve it in any ultimate expense or
liability for which it would not be reimbursed hereunder. The indemnification
provisions in this Section 5.02 shall survive the termination of this Agreement.
Section 5.03 Representations and Warranties.
(a) The Subservicer hereby represents, warrants, and covenants to
the Master Servicer that as of the date of this Agreement:
(i) the Subservicer is a national banking association duly
organized, validly existing, and in good standing under the laws of
the United States and is in compliance with the laws of each
jurisdiction in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement and
to ensure the enforceability of any Mortgage Loan, except where the
failure to so qualify or comply would not have a material adverse
effect on the ability of the Subservicer to perform its obligations
under this Agreement or the enforceability of any Mortgage Loan;
(ii) the execution and delivery of this Agreement by the
Subservicer and its performance under and compliance with the terms
of this Agreement will not violate the Subservicer'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 breach of, any material contract, agreement or other material
instrument to which the Subservicer is a party or which is
applicable to it or any of its assets, or result in the violation of
any law, rule, regulation, order, judgment or decree to which it or
its property is subject, which violation, default or breach, in the
Subservicer's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Subservicer to
perform its obligations under this Agreement;
(iii) the Subservicer 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 the Master Servicer, constitutes a legal, valid, and
binding obligation of the Subservicer, enforceable against it in
accordance with its terms, subject to (A) applicable bankruptcy,
insolvency, reorganization, liquidation, receivership, 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 Subservicer 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 Subservicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Subservicer to perform its
obligations under this Agreement or the financial condition of the
Subservicer;
(vi) no litigation is pending or, to the best of the
Subservicer's knowledge, threatened, against the Subservicer that
would prohibit the Subservicer from entering into this Agreement or,
in the Subservicer's good faith and reasonable judgment, is likely
to materially and adversely affect either the ability of the
Subservicer to perform its obligations under this Agreement or the
financial condition of the Subservicer;
(vii) any consent, approval, authorization, or order of any
court or governmental agency or body required for the execution,
delivery, and performance by the Subservicer of or compliance by the
Subservicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective, or if any such consent, approval, authorization, or order
has not been or cannot be obtained prior to the actual performance
by the Subservicer of its obligations under this Agreement, the lack
of such item would not have a materially adverse effect on the
ability of the Subservicer to perform its obligations under this
Agreement;
(viii) each officer or employee of the Subservicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance and a
fidelity bond in the amounts and with the coverage as, and to the
extent, required by PSA Section 3.07(c); and
(ix) the Subservicer is not a Prohibited Party under the PSA.
(b) Upon discovery by either the Master Servicer or the Subservicer
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice thereof to the other
party.
(c) The representations and warranties of the Subservicer set forth
in the provisions in this Section 5.03 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.
ARTICLE VI
EVENTS OF DEFAULT; TERMINATION
------------------------------
Section 6.01 Events of Default.
(a) "Event of Default", wherever used in this Agreement, means any
one of the following events:
(i) any failure by the Subservicer to deposit into the
Subservicer Certificate Account any amount required to be so
deposited or remitted under this Agreement or to remit to the Master
Servicer any amount requested to be so remitted pursuant to and in
accordance with this Agreement, which failure continues unremedied
for one (1) Business Day following the date on which such deposit or
remittance was first required to be made; or
(ii) any failure on the part of the Subservicer duly to
observe or perform in any material respect any other of the
covenants or agreements on the part of the Subservicer contained in
this Agreement (other than a failure to deliver the items described
in Section 6.01(a)(ix) below with regards to a fiscal year in which
the Trust is subject to Exchange Act reporting requirements), which
failure continues unremedied for a period of 20 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Subservicer; provided,
however, that, with respect to any such failure that is capable of
being cured but is not curable within such 20-day period, the
Subservicer shall have an additional cure period of 30 days so long
as the Subservicer has commenced to cure such failure within the
initial 20-day period and has diligently pursued, and is continuing
to pursue, a full cure; or
(iii) any breach on the part of the Subservicer 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 20
days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given to the
Subservicer; provided, however, that, with respect to any such
breach that is capable of being cured but is not curable within such
20-day period, the Subservicer shall have an additional cure period
of 30 days so long as the Subservicer has commenced to cure such
failure within the initial 20-day period and has diligently pursued,
and is continuing to pursue, a full cure; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency,
or similar law for the appointment of a conservator, receiver,
liquidator, trustee, or similar official in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Subservicer and such decree or order shall have remained in force
undischarged, undismissed, or unstayed for a period of 50 days;
provided, however, that, with respect to any such decree or order
that cannot be discharged, dismissed, or stayed within such 50-day
period, the Subservicer shall have an additional period of 30 days
to effect such discharge, dismissal, or stay so long as the
Subservicer has commenced the appropriate proceedings to have such
decree or order dismissed, discharged, or stayed within the initial
50-day period and has diligently pursued, and is continuing to
pursue, such dismissal, discharge, or stay; or
(v) the Subservicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee, or similar official in
any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings of or relating to it
or of or relating to all or substantially all of its property; or
(vi) the Subservicer 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
(vii) the Master Servicer or the Subservicer obtains actual
knowledge that ▇▇▇▇▇'▇ has (1) qualified, downgraded or withdrawn
its rating or ratings of any Class of Certificates or class of
Serviced Companion Loan Securities, or (2) placed any Class of
Certificates or class of Serviced Companion Loan Securities on
"watchlist" status in contemplation of a rating downgrade or
withdrawal (and such "watchlist" status placement is not withdrawn
by ▇▇▇▇▇'▇ within 60 days after the date when the Master Servicer or
the Subservicer, as the case may be, obtained such actual knowledge)
and, in the case of either clause (1) or (2), cited servicing
concerns with the Subservicer as the sole or a material factor in
such rating action; or
(viii) the Subservicer is no longer listed on S&P's Select
Servicer List as a U.S. Commercial Mortgage Servicer and either (A)
not reinstated to such status on such list within 60 days of removal
or (B) any of the ratings assigned to any Class of Certificates or
to any class of Serviced Companion Loan Securities are qualified,
downgraded, or withdrawn as a result of such removal, whichever is
earlier; or
(ix) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, (A) the Subservicer fails to
comply with any of the requirements under Section 3.05 of this
Agreement or under PSA Article XI (including the failure to deliver
any reports or certificates at the time such report or certification
is required hereunder or thereunder) or (B) the Subservicer fails to
comply with any requirements to deliver any items required by Items
1122 and 1123 of Regulation AB under any other pooling and servicing
agreement relating to any transaction similar to the Subject
Securitization Transaction;
(x) the Subservicer creates or causes an "Event of Default"
under the PSA.
(b) Upon any Event of Default by the Subservicer, the Master
Servicer may, by notice in writing to the Subservicer, in addition to whatever
rights the Master Servicer may have at law or in equity, including injunctive
relief and specific performance, immediately terminate all of the rights and
obligations of the Subservicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, subject to Section 6.02, without the Master
Servicer incurring any penalty or fee of any kind whatsoever in connection
therewith. Without limiting the foregoing, upon any Event of Default described
in Section 6.01(a)(ix), either the Master Servicer or the Depositor may
immediately terminate the Subservicer under this Agreement without incurring any
penalty or fee of any kind whatsoever in connection therewith (and, for to avoid
doubt, such termination shall be deemed for cause). Except as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Event of Default. On or after the receipt by the
Subservicer of such written notice of termination from the Master Servicer, all
authority and power of the Subservicer in this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall pass to and be vested in the Master
Servicer, and the Subservicer agrees to cooperate with the Master Servicer in
effecting the termination of the Subservicer's responsibilities and rights under
this Agreement, including the remittance of funds and the transfers of the
Subservicing Files as set forth in Section 6.02.
(c) Upon discovery by the Subservicer of any Event of Default
(regardless of whether any notice has been given as provided in this Agreement
or any cure period provided in this Agreement has expired), the Subservicer
shall give prompt written notice thereof to the Master Servicer.
(d) The Master Servicer may waive in writing any default by the
Subservicer in the performance of its obligations under this Agreement and its
consequences. Upon any such waiver of a past default, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been remedied for every purpose of this Agreement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
Section 6.02 Termination of Agreement.
(a) This Agreement shall be terminated:
(i) pursuant to Section 6.01, if the Master Servicer elects to
terminate the Subservicer following an Event of Default;
(ii) upon resignation by the Subservicer as provided in
Section 5.01;
(iii) with respect to any Mortgage Loan, upon the occurrence
of a Liquidation Event with respect to such Mortgage Loan pursuant
to the PSA; or
(iv) with respect to any Mortgage Loan, upon the purchase,
repurchase, or replacement of such Mortgage Loan pursuant to PSA
Section 2.03 or PSA Section 9.01; or
(v) if the Master Servicer's responsibilities and duties as
Master Servicer under the PSA have been assumed by the Trustee, its
designee, or any other successor to the Master Servicer, and the
Trustee, its designee, or any other successor to the Master Servicer
has the right to terminate the Subservicer under PSA Section 3.22
and has elected to terminate the Subservicer pursuant to, and in
accordance with, this Agreement and PSA Section 3.22.
Notwithstanding anything herein to the contrary, the rights, duties and
obligations of the Subservicer under this Agreement (other than rights to
indemnification) with respect to any Mortgage Loan shall (i) be suspended on the
date such Mortgage Loan becomes a Specially Serviced Loan pursuant to the PSA
and (ii) thereafter resume on the date such Mortgage Loan becomes a Corrected
Loan.
(b) If the Master Servicer's responsibilities and duties as Master
Servicer under the PSA have been assumed by the Trustee, and in connection
therewith the Trustee has not requested the termination of this Agreement as
provided in PSA Section 3.22, the Trustee shall, without act or deed on the part
of the Trustee, succeed to all of the rights and (except to the extent they
arose prior to the date of such succession) obligations of the Master Servicer
under this Agreement as provided in PSA Section 3.22, and the Subservicer shall
be bound to the Trustee under all of the terms, covenants, and conditions of
this Agreement with the same force and effect as if the Trustee was originally
the Master Servicer under this Agreement; and the Subservicer does hereby attorn
to the Trustee, as the Master Servicer under this Agreement, such attornment to
be effective and self-operative without the execution of any further instruments
on the part of any of the parties hereto immediately upon the Trustee succeeding
to the interest of the Master Servicer under this Agreement. The Subservicer
agrees, however, upon written demand by the Trustee, to promptly execute and
deliver to the Trustee an instrument in confirmation of the foregoing
provisions, satisfactory to the Trustee, in which the Subservicer shall
acknowledge such attornment and shall confirm to the Trustee its agreement to
the terms and conditions of this Agreement. References to the Trustee under this
Section 6.02 shall include any successor Master Servicer under the PSA.
(c) Termination pursuant to this Section 6.02 or as otherwise
provided in this Agreement shall be without prejudice to any rights of the
Master Servicer or the Subservicer which may have accrued through the date of
termination under this Agreement. In connection with any such termination, the
Subservicer shall: (i) promptly remit all funds in the related Accounts to the
Master Servicer or such other Person designated by the Master Servicer, net of
accrued Subservicing Fees and Additional Subservicing Compensation through the
termination date that are due and payable to the Subservicer; (ii) promptly
deliver all related Subservicing Files to the Master Servicer or its designee;
and (iii) fully cooperate with the Master Servicer to effectuate an orderly
transition of the servicing of the related Mortgage Loans. All rights of the
Subservicer relating to the payment of its Subservicing Fees and Additional
Subservicing Compensation and all liabilities of the Subservicer, which in any
such case accrued under the terms of this Agreement on or before the date of
such termination, shall continue in full force and effect until payment or other
satisfaction in accordance with this Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
Section 7.01 Amendment.
This is the entire agreement between the parties with respect to the
matters set forth in this Agreement, and all prior oral and written agreements
with respect to the matters set forth in this Agreement are superseded by the
terms of this Agreement. This Agreement, including the provisions of this
Section 7.01, may not be modified except by written amendment to this Agreement
signed by the party or parties affected by the same.
Section 7.02 Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York and the obligations, rights, and remedies of the parties
hereunder shall be determined in accordance with the laws of the State of New
York, except to the extent preempted by Federal Law.
Section 7.03 Notices.
(a) All demands, notices, and communications under this Agreement
shall be in writing and addressed in each case as follows:
(i) if to the Subservicer, at:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Servicing Manager
with copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to the Master Servicer, at:
KeyCorp Real Estate Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Polsinelli ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Suelthaus PC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) Any of the above-referenced Persons may change its address for
notices under this Agreement by giving notice of such change to the other
Persons. All notices and demands shall be deemed to have been given at the time
of the delivery at the address of such Person for notices under this Agreement
if personally delivered, sent by overnight courier or, if followed by hard copy
via overnight courier, sent by facsimile.
(c) To the extent that any demand, notice, or communication under
this Agreement is given to the Subservicer by a Responsible Officer of the
Master Servicer, such Responsible Officer shall be deemed to have the requisite
power and authority to bind the Master Servicer with respect to such
communication, and the Subservicer may conclusively rely upon and shall be
protected in acting or refraining from acting upon any such communication. To
the extent that any demand, notice, or communication under this Agreement is
given to the Master Servicer by a Responsible Officer of the Subservicer, such
Responsible Officer shall be deemed to have the requisite power and authority to
bind the Subservicer with respect to such communication, and the Master Servicer
may conclusively rely upon and shall be protected in acting or refraining from
acting upon any such communication.
Section 7.04 Consistency with PSA; Severability of Provisions.
This Agreement shall be subject to the provisions of the PSA, which
provisions shall be paramount and controlling and shall supersede the provisions
of this Agreement to the extent of any conflicts or inconsistencies. If one or
more of the provisions of this Agreement shall be for any reason whatever held
invalid or unenforceable or shall be determined to be inconsistent with the PSA,
such provisions shall be deemed severable from the remaining covenants,
agreements, and provisions of this Agreement and such invalidity or
unenforceability shall in no way affect the validity or enforceability of such
remaining provisions or the rights of any parties hereto. To the extent
permitted by law, the parties hereto hereby waive any provision of law that
renders any provision of this Agreement invalid or unenforceable in any respect.
Section 7.05 Inspection and Audit Rights.
The Subservicer agrees that, on reasonable prior notice, it shall
permit any representative of the Master Servicer or its designee, during the
Subservicer's normal business hours, reasonable access to examine all books of
account, records, certifications, reports, statements, and other documents of
the Subservicer relating to the Mortgage Loans, to make copies and extracts
therefrom, and to discuss matters relating to the Mortgage Loans with the
Subservicer's officers and employees.
Section 7.06 Binding Effect; No Partnership; Counterparts.
Subject to Section 5.01 with respect to the Subservicer, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto. The parties hereby
acknowledge and agree that the Trustee, for the benefit of the
Certificateholders and as holder of the Uncertificated Lower Tier Interests, the
Class A-MFL Regular Interest and the Class A-JFL Regular Interest (and if a
Serviced Whole Loan is involved, for the benefit of the Certificateholders and
the holders of any related Serviced Companion Loan, as a collective whole), is a
third party beneficiary under this Agreement until such time as the Trustee or
its designee assumes the obligations of the Master Servicer under this Agreement
pursuant to Section 6.02 of this Agreement; but, except to the extent the
Trustee or its designee so assumes the obligations of the Master Servicer
hereunder, none of the Trust Fund, the Trustee, any successor Master Servicer or
the Special Servicer, as applicable, or any Certificateholder or any holder of a
Serviced Companion Loan, has any duties under this Agreement or any liabilities
arising herefrom. Nothing contained in this Agreement shall be deemed or
construed to create a partnership or joint venture between the parties hereto
and the services of the Subservicer shall be rendered as an independent
contractor for the Master Servicer.
For the purpose of facilitating the execution of this Agreement as
provided in this Agreement 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. A signature of a party by facsimile
or other electronic transmission shall be deemed to constitute an original and
fully effective signature of such party.
Section 7.07 Protection of Confidential Information.
The Subservicer shall keep confidential and shall not divulge to any
party, without the Master Servicer's prior written consent (which shall not be
unreasonably withheld or delayed), any information pertaining to the Mortgage
Loans, the Mortgaged Properties, or the Mortgagors except to the extent that the
Subservicer provides prior written notice to the Master Servicer and (a) it is
appropriate for the Subservicer to do so (i) in working with legal counsel,
auditors, other advisors, taxing authorities, or other governmental agencies,
(ii) in accordance with Accepted Subservicing Practices, or (iii) when required
by any law, regulation, ordinance, court order, or subpoena; or (b) the
Subservicer is disseminating general statistical information relating to the
mortgage loans being serviced by the Subservicer (including the Mortgage Loans)
so long as the Subservicer does not identify the owner of the Mortgage Loans or
the Mortgagors.
Section 7.08 Construction.
The article and section headings in this Agreement are for
convenience of reference only, and shall not limit or otherwise affect the
meaning thereof. This Agreement shall be construed without regard to any
presumption or rule requiring construction against the party causing such
instrument or any portion thereof to be drafted. Any pronoun used in this
Agreement shall be deemed to cover all genders. The terms "include,"
"including," and similar terms shall be construed as if followed by the phrase
"without being limited to." The term "or" has, except where otherwise indicated,
the inclusive meaning represented by the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision or section of this
Agreement. Words importing the singular number shall mean and include the plural
number, and vice versa.
[Remainder of Page Intentionally Blank; Signature Page Follows]
IN WITNESS WHEREOF, the Master Servicer and the Subservicer have
caused this Agreement to be duly executed as of the date first above written.
MASTER SERVICER:
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.,
an Ohio corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
SUBSERVICER:
BANK OF AMERICA, N.A.,
a national banking association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan Cut-off Date Balance Subservicing Fee Rate
------------- -------------------- ---------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 80,000,000.00 0.05 (5 bps)
National Envelope $ 56,250,000.00 0.02 (2 bps)
Doubletree Irvine Spectrum $ 44,500,000.00 0.01 (1 bp)
Piero Apartments $ 40,400,000.00 0.01 (1 bp)
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ $ 29,500,000.00 0.01 (1 bp)
Wyndham Jacksonville Riverwalk Hotel $ 26,000,000.00 0.02 (2 bps)
Oakridge Apartments $ 23,250,000.00 0.02 (2 bps)
Lebanon Plaza $ 23,200,000.00 0.01 (1 bp)
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ $ 22,600,000.00 0.01 (1 bp)
Springhill Suites Chicago Portfolio $ 22,500,000.00 -
Springhill Suites - ▇▇▇▇ Ridge $ 11,840,000.00 0.02 (2 bps)
Springhill Suites - Elmhurst $ 10,660,000.00 0.02 (2 bps)
5200 Alameda $ 22,000,000.00 0.02 (2 bps)
Orchard Heights $ 21,400,000.00 0.02 (2 bps)
Cypress Crossroads $ 19,400,000.00 0.01 (1 bp)
Clarion LaGuardia Airport Hotel $ 17,300,000.00 0.01 (1 bp)
Westchester Portfolio $ 16,800,000.00 0.02 (2 bps)
Backlick Plaza $ 16,560,000.00 0.01 (1 bp)
Arbor Station $ 16,400,000.00 0.02 (2 bps)
MWD Bolingbrook Industrial $ 16,100,000.00 0.02 (2 bps)
Columbia Hotel Portfolio $ 16,050,000.00 0.02 (2 bps)
New Trier Crossed Loans Rollup $ 15,484,621.00 -
New Trier Indianapolis $ 6,036,705.00 0.02 (2 bps)
New Trier Bakersfield $ 5,372,916.00 0.02 (2 bps)
New Trier Gurnee $ 4,075,000.00 0.02 (2 bps)
Raytheon Building $ 14,500,000.00 0.02 (2 bps)
Arcadis - BBL HQ $ 14,110,000.00 0.01 (1 bp)
▇▇▇▇▇▇▇▇ Plaza $ 13,952,650.94 0.01 (1 bp)
The ▇▇▇▇▇▇▇▇▇▇ $ 13,500,000.00 0.01 (1 bp)
River Park Apartments $ 12,700,000.00 0.02 (2 bps)
▇▇▇▇▇ Store 80 $ 12,489,566.28 0.04 (4 bps)
Stratford Village Apartments $ 12,000,000.00 0.02 (2 bps)
Harbour Run Apartments $ 11,200,000.00 0.02 (2 bps)
Holiday Inn Vail Apex $ 10,970,068.72 0.02 (2 bps)
Fountain Plaza Medical Office $ 10,550,000.00 0.02 (2 bps)
Thurms Estates MHP $ 10,400,000.00 0.02 (2 bps)
Shoppes at ▇▇▇▇ Park $ 10,200,000.00 0.01 (1 bp)
Holiday Inn-Bordeaux $ 9,907,072.09 0.02 (2 bps)
Barloworld Distribution $ 9,820,000.00 0.02 (2 bps)
Shops at Stadium Towers and Hooters Crossed Portfolio $ 9,567,786.95 -
Shops at Stadium Towers $ 8,076,701.79 0.01 (1 bp)
Shops at Stadium Towers Hooters $ 1,491,085.16 0.01 (1 bp)
Cypress Center $ 9,516,000.00 0.06 (6 bps)
Tecnofarma $ 9,075,495.22 0.02 (2 bps)
▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 9,000,000.00 0.01 (1 bp)
Chestnut Court Apartments $ 9,000,000.00 0.01 (1 bp)
Mountain View Plaza $ 8,700,000.00 0.01 (1 bp)
Hilton Village Shopping Center and Hilton Village Office Park $ 8,600,000.00 0.01 (1 bp)
Crane Building $ 8,400,000.00 0.01 (1 bp)
PetsMart/Staples $ 8,300,000.00 0.01 (1 bp)
Hampton Inn West $ 7,874,421.46 0.01 (1 bp)
Ohio MHP Portfolio $ 7,636,000.00 0.02 (2 bps)
▇▇▇▇▇▇ Medical Office Building $ 7,475,221.44 0.01 (1 bp)
▇▇▇▇▇▇▇▇ Apartments $ 7,300,000.00 0.02 (2 bps)
229 Fabricante $ 6,487,501.17 0.01 (1 bp)
▇▇▇▇▇▇▇▇'▇ Plaza $ 6,438,679.99 0.01 (1 bp)
Shops Under Target $ 6,395,966.83 0.01 (1 bp)
Holiday Inn Hotel & Suites ▇▇▇▇▇▇ $ 5,987,182.51 0.02 (2 bps)
▇▇▇▇▇ Corning Industrial $ 5,430,000.00 0.01 (1 bp)
Holiday Inn Select Wilmington-Brandywine $ 5,335,321.08 0.01 (1 bp)
▇▇▇▇▇ Store 31 $ 5,260,611.39 0.04 (4 bps)
Stone Ridge Apartments Phase II $ 5,184,567.64 0.02 (2 bps)
Holiday Inn Express Six Flags $ 4,960,000.00 0.01 (1 bp)
Premier Self Storage -Toa Baja $ 4,904,000.00 0.01 (1 bp)
Indiana MHP Portfolio $ 4,855,366.74 0.02 (2 bps)
Cornerstone Center $ 4,645,255.50 0.01 (1 bp)
Mission ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ $ 4,610,000.00 0.01 (1 bp)
Northstate Storage Portfolio Myrtle Beach $ 4,600,000.00 0.01 (1 bp)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $ 4,584,380.11 0.02 (2 bps)
The ▇▇▇▇▇▇▇ Works $ 4,380,000.00 0.01 (1 bp)
Best Western Ellensburg $ 4,331,470.06 0.02 (2 bps)
▇▇▇▇▇▇▇▇ Gardens $ 4,300,000.00 0.02 (2 bps)
▇▇▇▇▇▇ Plaza $ 4,195,611.61 0.01 (1 bp)
Northstate Storage Portfolio Carolina Beach $ 4,200,000.00 0.01 (1 bp)
Rite Aid - 302 ▇▇▇▇ ▇▇▇▇ $ 4,171,488.00 0.02 (2 bps)
Best Buy Stevens Point Wisconsin $ 4,106,688.89 0.02 (2 bps)
Best Western - Astoria $ 3,989,266.08 0.02 (2 bps)
2301 & ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ $ 3,942,725.66 0.01 (1 bp)
Walgreens ▇▇▇▇▇▇ $ 3,696,019.74 0.01 (1 bp)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 3,691,200.00 0.02 (2 bps)
Holland Gardens Apartments $ 3,480,000.00 0.02 (2 bps)
The Atrium Offices $ 3,300,000.00 0.02 (2 bps)
Northern Tool Building $ 3,000,000.00 0.02 (2 bps)
▇▇▇▇▇ Gulch Center $ 2,791,117.01 0.01 (1 bp)
▇▇▇▇▇ Store 71 $ 2,674,284.77 0.04 (4 bps)
Northstate Storage Portfolio Mineral Springs $ 2,600,000.00 0.01 (1 bp)
▇▇▇▇▇ Store 95 $ 2,514,223.28 0.04 (4 bps)
Northstate Storage Portfolio Swansboro $ 2,500,000.00 0.01 (1 bp)
631 & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $ 2,193,154.28 0.01 (1 bp)
Walgreen's - Mundelein, IL $ 2,142,957.27 0.01 (1 bp)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 1,600,000.00 0.02 (2 bps)
Mill Creek Professional Building $ 1,381,317.23 0.01 (1 bp)
EXHIBIT B
---------
(Remittance Report)
EXHIBIT C
---------
(Tax, Insurance, UCC and Letter of Credit Certification)