and Berkeley Point Capital LLC, DBA NEWMARK KNIGHT FRANK Primary Servicer PRIMARY SERVICING AGREEMENT Dated as of December 1, 2018 Citigroup Commercial Mortgage Trust 2018-C6, Commercial Mortgage Pass-Through Certificates
Exhibit 99.5
Execution Copy
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer
and
Berkeley
Point Capital LLC, DBA NEWMARK ▇▇▇▇▇▇ ▇▇▇▇▇
Primary Servicer
Dated
as of December 1, 2018
Citigroup
Commercial Mortgage Trust 2018-C6,
Commercial Mortgage Pass-Through Certificates
Series 2018-C6
TABLE OF CONTENTS
| Page | ||
| ARTICLE I DEFINITIONS | 1 | |
| Section 1.01 | Defined Terms | 1 |
| ARTICLE II MASTER SERVICER’S ENGAGEMENT OF PRIMARY SERVICER TO PERFORM SERVICING RESPONSIBILITIES | 2 | |
| Section 2.01 | Contract for Servicing; Possession of Loan Documents | 2 |
| Section 2.02 | Notice of Defect, Breach or Repurchase Request | 3 |
| ARTICLE III SERVICING OF THE SERVICED LOAN COMBINATION | 3 | |
| Section 3.01 | Primary Servicer to Service | 3 |
| Section 3.02 | Merger or Consolidation of the Primary Servicer | 16 |
| Section 3.03 | Limitation on Liability of the Primary Servicer and Others | 16 |
| Section 3.04 | Primary Servicer Not to Resign | 17 |
| Section 3.05 | No Transfer or Assignment of Servicing | 17 |
| Section 3.06 | Indemnification | 18 |
| ARTICLE IV DEFAULT | 18 | |
| Section 4.01 | Events of Default | 18 |
| Section 4.02 | Waiver of Defaults | 21 |
| Section 4.03 | Other Remedies of Master Servicer | 22 |
| ARTICLE V TERMINATION | 22 | |
| Section 5.01 | Termination | 22 |
| Section 5.02 | Termination With Cause | 22 |
| Section 5.03 | Intentionally Deleted | 22 |
| Section 5.04 | Termination of Duties with Respect to Specially Serviced Loans | 23 |
| ARTICLE VI MISCELLANEOUS | 23 | |
| Section 6.01 | Successor to the Primary Servicer | 23 |
| Section 6.02 | Financial Statements | 23 |
| Section 6.03 | Closing | 23 |
| Section 6.04 | Closing Documents | 23 |
| Section 6.05 | Notices | 24 |
| Section 6.06 | Severability Clause | 25 |
| Section 6.07 | Counterparts | 25 |
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TABLE OF CONTENTS
(continued)
| Page | ||
| Section 6.08 | Governing Law | 26 |
| Section 6.09 | Protection of Confidential Information | 26 |
| Section 6.10 | Intention of the Parties | 26 |
| Section 6.11 | Third Party Beneficiary | 26 |
| Section 6.12 | Successors and Assigns; Assignment of Agreement | 26 |
| Section 6.13 | Waivers | 27 |
| Section 6.14 | Exhibits | 27 |
| Section 6.15 | General Interpretive Principles | 27 |
| Section 6.16 | Complete Agreement | 27 |
| Section 6.17 | Further Agreement | 27 |
| Section 6.18 | Amendments | 27 |
| Section 6.19 | Exchange Act Rule 17g-5 Procedures | 27 |
| Section 6.20 | Notification to Primary Servicer Concerning REO Property | 28 |
| EXHIBIT A | MORTGAGE LOAN SCHEDULE | A-1 |
| EXHIBIT B | PRIMARY SERVICER’S OFFICER’S CERTIFICATE | B-1 |
| EXHIBIT C | POOLING AND SERVICING AGREEMENT | C-1 |
| EXHIBIT D | [RESERVED] | |
| EXHIBIT E | QUARTERLY SERVICING CERTIFICATION | E-1 |
| EXHIBIT F | FORM OF ACCOUNT CERTIFICATION | F-1 |
| EXHIBIT G | FORM OF COLLECTION REPORT | G-1 |
| EXHIBIT H | FORM OF CERTIFICATE OF INSURANCE | H-1 |
| EXHIBIT I | NEW LEASE INFORMATION | I-1 |
| EXHIBIT J | MONTHLY ESCROW ACCOUNTS CERTIFICATION | J-1 |
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This is a Primary Servicing Agreement (this “Agreement”), dated as of December 1, 2018, by and between Berkeley Point Capital LLC, DBA NEWMARK ▇▇▇▇▇▇ ▇▇▇▇▇ a Delaware limited liability company having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and its successors and assigns (the “Primary Servicer”), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, having an office at c/o Commercial Mortgage Servicing, Three ▇▇▇▇▇ Fargo, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor, MAC D1050-084, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its successors and assigns (the “Master Servicer”).
W I T N E S S E T H:
WHEREAS, Citigroup Commercial Mortgage Securities Inc., as Depositor (the “Depositor”), Midland Loan Services, a Division of PNC Bank, National Association, as Special Servicer (the “Special Servicer”), Wilmington Trust, National Association, as Trustee (the “Trustee”), Citibank, N.A., as Certificate Administrator (the “Certificate Administrator”), Park Bridge Lender Services LLC, as Operating Advisor (in such capacity, the “Operating Advisor”) and as Asset Representations Reviewer (in such capacity, the “Asset Representations Reviewer”), and the Master Servicer have entered into that certain Pooling and Servicing Agreement dated as of December 1, 2018 (as amended, modified and restated from time to time, the “Pooling and Servicing Agreement”), whereby the Master Servicer shall master service certain mortgage loans and related companion loans, including the Serviced Loan Combination (defined below), on behalf of the Trustee; and
WHEREAS, the Master Servicer desires to enter into a contract with the Primary Servicer whereby the Primary Servicer shall service the mortgage loan or mortgage loans listed on Exhibit A (the “Mortgage Loan Schedule”) attached hereto (hereinafter referred to as the “Mortgage Loans”) and the Riverwalk II Companion Loans listed on the Mortgage Loan Schedule (the “Serviced Companion Loans”; together with the Mortgage Loans, the “Serviced Loan Combination”) on behalf of the Master Servicer.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Master Servicer and the Primary Servicer hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms not otherwise defined herein shall have the meanings set forth in the Pooling and Servicing Agreement. As used herein, the following terms have the meanings assigned to them in this Section 1.01:
“Available Distribution Amount” shall mean, with respect to any date and with respect to the Mortgage Loans, an amount equal to, without duplication, (a) the sum of (i) the aggregate of the amounts on deposit attributable to the Mortgage Loans in the Primary Servicer Collection Account and the Primary Servicer Loan Combination Custodial Account as of such date, (ii) the aggregate of all other amounts received with respect to the Serviced Loan Combination as of
such date to the extent not previously remitted to the Master Servicer, and (iii) the aggregate amount of Prepayment Interest Shortfalls deposited by the Primary Servicer in the Primary Servicer Collection Account as required by Section 3.13 of the Pooling and Servicing Agreement as incorporated herein pursuant to Section 3.01(c)(22) of this Agreement, to the extent not previously remitted to the Master Servicer, net of (b) the portion of the amount described in subclause (a) of this definition that represents one or more of the following: (i) Escrow Payments (other than the Escrow Payments that are to be used to reimburse the Master Servicer for Property Advances) or (ii) any amounts that the Primary Servicer is entitled to retain as compensation pursuant to Section 3.12(a) of the Pooling and Servicing Agreement as incorporated herein pursuant to Section 3.01(c)(20) of this Agreement.
“Collection Report” shall mean the monthly report prepared by the Primary Servicer setting forth, with respect to the Serviced Loan Combination and the most recently ended Collection Period prior to the due date of such report, the information described on Exhibit G attached hereto.
“Mortgage Loans” shall have the meaning specified in the recitals hereto.
“Mortgage Loan Schedule” shall have the meaning specified in the recitals hereto.
“Primary Servicer Collection Account” shall have the meaning specified in Section 3.01(c)(9) of this Agreement.
“Primary Servicer Loan Combination Custodial Account” shall have the meaning specified in Section 3.01(c)(10) of this Agreement.
“Primary Servicer Remittance Date” shall mean the first Business Day after each Determination Date.
“Primary Servicer Reporting Date” shall mean the first Business Day after each Determination Date.
“Primary Servicer Parties” shall have the meaning specified in Section 3.03 of this Agreement.
“Primary Servicing Fee” shall mean, with respect to each Mortgage Loan and each Serviced Companion Loan, the fee payable to the Primary Servicer pursuant to Section 3.01(c)(20) of this Agreement.
“Primary Servicing Fee Rate” shall mean, with respect to each Mortgage Loan and each Serviced Companion Loan, the rate that corresponds to such Mortgage Loan or Serviced Companion Loan set forth on Exhibit A hereto under the heading “Primary Servicing Fee.”
“Serviced Companion Loans” shall have the meaning specified in the recitals hereto.
“Serviced Loan Combination” shall have the meaning specified in the recitals hereto.
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ARTICLE
II
MASTER SERVICER’S ENGAGEMENT OF PRIMARY SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Loan Documents.
The Master Servicer, by execution and delivery of this Agreement, does hereby contract with the Primary Servicer, subject to the terms of this Agreement, for the servicing of the Serviced Loan Combination. On and after the Closing Date, the Primary Servicer shall hold any portion of the Servicing File or the Mortgage File in the possession of the Primary Servicer in trust by the Primary Servicer, on behalf of the Master Servicer for the benefit of the Trustee. The Primary Servicer’s possession of any portion of the Servicing File or the Mortgage File shall be at the will of the Master Servicer and the Trustee for the sole purpose of facilitating the servicing or the supervision of servicing of the Serviced Loan Combination pursuant to this Agreement, and such retention and possession by the Primary Servicer shall be in a custodial capacity only. Any portion of the Servicing File or the Mortgage File retained by the Primary Servicer shall be identified to reflect clearly the ownership of the Mortgage Loans by the Trustee. The Primary Servicer shall release from its custody any Mortgage File retained by it only in accordance with this Agreement and the Pooling and Servicing Agreement. The Primary Servicer shall provide to the Master Servicer as soon as practicable after request therefor by the Master Servicer a copy of any documents held by it with respect to the Serviced Loan Combination. During the term of this Agreement, the Primary Servicer will also provide to the Master Servicer a copy of any lease, amendments and other documents related to the Mortgaged Property securing the related Mortgage Loan or related to the Mortgage Loan as soon as possible after receipt or execution thereof, as applicable. Except as otherwise provided herein, the Primary Servicer shall not be obligated to provide a copy of any documents held by it with respect to the Serviced Loan Combination to any Person not a party to this Agreement. If and so long as the Primary Servicer (i) has a vault or other adequate safety procedures in place satisfactory to the Master Servicer, in its sole discretion, or (ii) outsources such responsibility to a third party vendor satisfactory to the Master Servicer, who has a vault or other adequate safety procedures in place satisfactory to the Master Servicer, in its sole discretion, the Primary Servicer shall hold the original of any letters of credit related to the Serviced Loan Combination and perform any obligations of the Master Servicer with respect thereto all in accordance with any applicable requirements of Section 2.01(b) of the Pooling and Servicing Agreement. If at any time the Primary Servicer does not satisfy the conditions described in clause (i) or clause (ii) of the immediately preceding sentence, the Primary Servicer shall immediately deliver to the Master Servicer the original of any letters of credit related to the Serviced Loan Combination.
Section 2.02 Notice of Defect, Breach or Repurchase Request.
Following its receipt from the Depositor, the Master Servicer shall provide a copy of the CCRE Mortgage Loan Purchase Agreement to the Primary Servicer. The Primary Servicer shall notify the Master Servicer in writing within five (5) Business Days after the Primary Servicer (a) discovers or receives notice alleging a Document Defect or a Breach, (b) receives a Repurchase Communication of a Repurchase, a Repurchase Request, a Repurchase Request Rejection or a Repurchase Request Withdrawal, or (c) receives a Certificateholder Repurchase Request or a
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PSA Party Repurchase Request, in each case with respect to the Serviced Loan Combination. The Primary Servicer shall, within five (5) Business Days of receipt, provide to the Master Servicer a copy of any written Repurchase Request, Repurchase Request Withdrawal, Repurchase, Repurchase Request Rejection, Certificateholder Repurchase Request or PSA Party Repurchase Request received by the Primary Servicer and such other information in the possession of the Primary Servicer reasonably requested by the Master Servicer to fulfill its obligations under Section 2.03 of the Pooling and Servicing Agreement.
ARTICLE
III
SERVICING OF THE SERVICED LOAN COMBINATION
Section 3.01 Primary Servicer to Service.
(a) The Primary Servicer, as an independent contractor, shall service and administer the Serviced Loan Combination in a manner consistent with the Servicing Standard under the Pooling and Servicing Agreement and, in the case of the Serviced Companion Loans, taking into account the pari passu nature of the Serviced Companion Loans.
(b) The Primary Servicer shall perform, on behalf of the Master Servicer, all of the obligations of the Master Servicer (with respect to the Serviced Loan Combination subject to this Agreement) as set forth in those sections of the Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c) of this Agreement (the “Incorporated Sections”), as modified by Section 3.01(c) of this Agreement, and the Master Servicer shall have the same rights with respect to the Primary Servicer that the Trustee, the Certificate Administrator, the Custodian, the Depositor, the Controlling Class Certificateholders, the Controlling Class Representative, the Operating Advisor, the Asset Representations Reviewer, the Rating Agencies, the Rule 17g-5 Information Provider, the Underwriters, the Initial Purchasers, the Directing Holders, the Certificateholders, the Serviced Companion Loan Holders, the Serviced Pari Passu Companion Loan Holders and the Special Servicer (including, without limitation, the right of the Special Servicer to direct the Master Servicer during certain periods) have with respect to the Master Servicer under the Pooling and Servicing Agreement to the extent that the Primary Servicer is acting on behalf of the Master Servicer hereunder and except as otherwise set forth herein. Without limiting the foregoing, and subject to Section 3.22 of the Pooling and Servicing Agreement as modified herein, the Primary Servicer shall service and administer each Mortgage Loan and Serviced Companion Loan as long as it is not a Specially Serviced Loan. All references herein to the respective duties of the Primary Servicer and the Special Servicer, and to the areas in which they may exercise discretion, shall be subject to Section 3.22 of the Pooling and Servicing Agreement, as modified herein and to the Special Servicer’s rights to service Specially Serviced Loans. Except as otherwise set forth below, for purposes of this Agreement, (i) references to the Trustee, the Certificate Administrator, the Depositor, the Custodian, the Rating Agencies, the Rule 17g-5 Information Provider, the Special Servicer, the Controlling Class Certificateholder, the Controlling Class Representative, the Operating Advisor, the Asset Representations Reviewer, the Underwriters, the Initial Purchasers, the Directing Holders, the Serviced Companion Loan Holders, the Serviced Pari Passu Companion Loan Holders and the Certificateholders in the Incorporated Sections (and in the defined terms used therein) shall be deemed to be references to the Master Servicer hereunder, (ii) references to the Master Servicer
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in the Incorporated Sections (and in the defined terms used therein) shall be deemed to be references to the Primary Servicer hereunder, (iii) references to the Mortgage Loans in the Incorporated Sections (and in the defined terms used therein) shall be deemed to be references to the Mortgage Loans as defined herein, (iv) references to the Serviced Companion Loans and Serviced Pari Passu Companion Loans in the Incorporated Sections (and in the defined terms used therein) shall be deemed to be references to the Serviced Companion Loans in this Agreement, and (v) references to the Serviced Loan Combination in the Incorporated Sections (and in the defined terms used therein) shall be deemed to be references to the Serviced Loan Combination in this Agreement (such modification of the Incorporated Sections shall be referred to herein as the “References Modification”). With respect to all servicing responsibilities of the Master Servicer under the Pooling and Servicing Agreement that are not being performed by the Primary Servicer under this Agreement, the Primary Servicer shall reasonably cooperate with the Master Servicer to facilitate the timely performance of such servicing responsibilities. The Primary Servicer shall not take any action (whether or not authorized hereunder) as to which the Master Servicer has advised it in writing that such action if taken may result in the imposition of a tax on any portion of the Trust or cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust. The Primary Servicer shall fully cooperate with the Master Servicer in connection with avoiding the imposition of a tax on any portion of the Trust or cause either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor trust.
(c) The following Sections of the Pooling and Servicing Agreement, unless otherwise provided in this Section 3.01(c) of this Agreement, are hereby incorporated herein by reference as if fully set forth herein, and, for purposes of this Agreement, in addition to the References Modification, are hereby further modified as set forth below:
(1) Section 1.02. The determination as to the application of amounts collected in respect of the Serviced Loan Combination, in the absence of express provisions in the related Loan Documents or to the extent that such terms authorize the lender to use its discretion, shall be made by the Master Servicer.
(2) Section 2.05(a). Section 2.05(a)(i) of the Pooling and Servicing Agreement shall be deemed modified to read “The Primary Servicer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Primary Servicer is in compliance with the laws of each jurisdiction in which a Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement.” The Primary Servicer hereby represents and warrants, as of the date hereof, that (i) each insurance policy and fidelity bond referenced in Section 3.08(c) of the Pooling and Servicing Agreement names the Master Servicer as an additional insured and loss payee; (ii) the net worth of the Primary Servicer determined in accordance with generally accepted accounting principles is not less than $2 million; (iii) the Primary Servicer is authorized to transact business in the state or states in which the Mortgaged Properties are located, if and to the extent required by applicable law; and (iv) the Primary Servicer is not, to its actual knowledge, a Risk Retention Affiliate of the Third Party Purchaser.
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(3) Sections 3.01(a), (b), (e) and (k). The Primary Servicer shall use efforts consistent with the Servicing Standard to continue all UCC financing statements in favor of the assignee prior to the expiration of such UCC financing statements. The Master Servicer shall forward the Primary Servicer recorded UCC financing statements reflecting the Trust as the secured party. Notwithstanding the foregoing, the Primary Servicer’s authority is restricted as provided in Section 3.01(c)(17) and (30) of this Agreement.
(4) Sections 3.01(c) and (d). References to the Master Servicer shall not be deemed to be references to the Primary Servicer for purposes of Sections 3.01(c) and (d) of the Pooling and Servicing Agreement. Each and every one of the terms and conditions of Sections 3.01(c) and (d) of the Pooling and Servicing Agreement shall be enforceable against the Primary Servicer in accordance with the terms thereof. The Primary Servicer may not enter into any new Primary Servicing Agreements in connection with the Serviced Loan Combination and shall directly service the Serviced Loan Combination in accordance with the terms and conditions of this Agreement. To the extent required by Sections 3.01(c) and (d) of the Pooling and Servicing Agreement, this Agreement will be assumed by the Trustee if the Trustee has assumed the duties of the Master Servicer or by a successor Master Servicer without cost or obligation to the assuming party or the Trust Fund, upon the assumption by such party of the obligations of the Master Servicer pursuant to Section 7.02 of the Pooling and Servicing Agreement. The Primary Servicer may not make any material servicing decisions, such as loan modifications or determinations as to the manner or timing of enforcing remedies under the Loan Documents without the consent of the Master Servicer, foreclose any Mortgage or, except as permitted by Section 3.01(c)(17) or (30) of this Agreement, grant any modification, extension, waiver or amendment to any Mortgage Loan or Serviced Companion Loan.
(5) Reserved.
(6) Section 3.03. The Primary Servicer may not waive any Penalty Charges that the Master Servicer is permitted to waive under Section 3.03 of the Pooling and Servicing Agreement without the consent of the Master Servicer. The Primary Servicer shall forward to the Master Servicer a copy of all income statements, rent rolls and other reporting information collected by the Primary Servicer within the timeframe set forth in Section 3.01(c)(35) of this Agreement. The Primary Servicer shall promptly notify the Master Servicer of any defaults under the Serviced Loan Combination, collection issues or customer issues; provided that the Primary Servicer shall not take any action with respect to enforcing the Serviced Loan Combination without the prior written approval of the Master Servicer.
(7) Section 3.04(a). Without limiting the generality of the obligations of the Primary Servicer hereunder, the Primary Servicer shall monitor and certify to the information on the Serviced Loan Combination with respect to taxes, insurance premiums, assessments, ground rents and other similar items on a quarterly basis, starting with the quarter ending March of 2019, within thirty (30) days of the end of such quarter as required by, and in the form of, Exhibit E attached hereto, pursuant to Section 3.01(c)(36) of this Agreement. The third, fourth, fifth and sixth sentences of Section 3.04(a) of the Pooling and Servicing Agreement are not incorporated herein. The Primary Servicer shall not be permitted to make any Property Advances. Upon the occurrence of an insured loss at a Mortgaged Property, the Primary Servicer shall notify the Master Servicer of the loss and the Primary Servicer’s receipt of the Insurance Proceeds. The
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Primary Servicer will provide to the Master Servicer all loss-related records and information received by the Primary Servicer as such information becomes available and shall confer with the Master Servicer regarding the process of releasing to the affected Mortgagor the Insurance Proceeds, including but not limited to questions such as whether the Primary Servicer is authorized to (i) endorse the checks issued by the insurer representing the Insurance Proceeds; and (ii) release the Insurance Proceeds to the affected Mortgagor. With respect to non-escrowed payments, when the Primary Servicer becomes aware in accordance with the Servicing Standard that a Mortgagor has failed to make any such payment or, with respect to escrowed loans, collections from a Mortgagor are insufficient to pay any such item before the applicable penalty or termination date, the Primary Servicer shall promptly notify the Master Servicer. The Master Servicer may direct the Primary Servicer to (and upon such direction, the Primary Servicer shall) make a payment from amounts on deposit in the Primary Servicer Loan Combination Custodial Account as contemplated by Section 3.04(a) of the Pooling and Servicing Agreement.
(8) Section 3.04(b), (c), (d) and (e). The creation of any Escrow Account shall be evidenced by a certification in the form of Exhibit F attached hereto and a copy of such certification shall be furnished to the Master Servicer within three (3) days of the Closing Date and thereafter to the Master Servicer upon any transfer of any Escrow Account. Without the express written consent of the Master Servicer, the Primary Servicer shall not (a) waive or extend the date set forth in any agreement governing reserve funds by which the required repairs and/or capital improvements at the related Mortgaged Property must be completed or (b) release any earn-out reserve funds or return any related letters of credit delivered in lieu of earn-out reserve funds. The Primary Servicer shall promptly notify the Master Servicer of any failure by a Mortgagor described in Section 3.04(e) of the Pooling and Servicing Agreement
(9) Section 3.05(a). The Primary Servicer shall establish a collection account (hereinafter the “Primary Servicer Collection Account”), meeting all of the requirements of the Collection Account, and references to the Collection Account shall be references to such Primary Servicer Collection Account. The creation of any Primary Servicer Collection Account shall be evidenced by a certification in the form of Exhibit F attached hereto and a copy of such certification shall be furnished to the Master Servicer on or prior to the Closing Date and thereafter to the Master Servicer upon any transfer of the Primary Servicer Collection Account. Notwithstanding the last two paragraphs of Section 3.05(a) of the Pooling and Servicing Agreement, the Primary Servicer shall deposit into the Primary Servicer Collection Account and include in its Available Distribution Amount, Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees, defeasance fees, review fees and other amounts that constitute other Additional Servicing Compensation or other Additional Special Servicing Compensation collected by the Primary Servicer, to the extent the Primary Servicer is not entitled to such amounts pursuant to Section 3.01(c)(20) of this Agreement.
(10) Section 3.05A. The Primary Servicer shall establish a collection account (hereinafter the “Primary Servicer Loan Combination Custodial Account”), meeting all of the requirements of the Loan Combination Custodial Account, and references to the Loan Combination Custodial Account shall be references to such Primary Servicer Loan Combination Custodial Account. The creation of any Primary Servicer Loan Combination Custodial Account, which may be a sub-account of the Primary Servicer Collection Account shall be evidenced by a certification in the form of Exhibit F attached hereto and a copy of such certification shall be
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furnished to the Master Servicer within three (3) days of the Closing Date and thereafter to the Master Servicer upon any transfer of the Primary Servicer Loan Combination Custodial Account. As of the Closing Date, the Primary Servicer Loan Combination Custodial Account will be a sub-account of the Primary Servicer Collection Account. Notwithstanding Section 3.05A(b) of the Pooling and Servicing Agreement, the Primary Servicer shall deposit into the Primary Servicer Loan Combination Custodial Account and include in its Available Distribution Amount, Ancillary Fees, Consent Fees, Assumption Fees, assumption application fees, defeasance fees, review fees and other amounts collected by the Primary Servicer to the extent not constituting Additional Servicing Compensation and/or Additional Special Servicing Compensation collected by the Primary Servicer (in each case, other than those to which the Primary Servicer is entitled pursuant to Section 3.01(c)(20) of this Agreement). Any amounts of Additional Special Servicing Compensation payable to the Special Servicer shall be remitted to the Special Servicer by the Master Servicer. For purposes of Section 3.05A(c) of the Pooling and Servicing Agreement, the Master Servicer shall direct the Special Servicer to make payment of amounts referenced therein directly to the Primary Servicer for deposit in the Primary Servicer Loan Combination Custodial Account.
(11) Section 3.06 is not incorporated herein. The Primary Servicer may, from time to time, make withdrawals from the Primary Servicer Collection Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Master Servicer for deposit in the Collection Account the amounts required to be so deposited pursuant to Section 4.06(a)(i)-(vii) of the Pooling and Servicing Agreement and Section 3.01(c)(36) of this Agreement;
(ii) to the extent not otherwise required to be applied to Prepayment Interest Shortfalls, to pay to itself earned and unpaid Sub-Servicing Fees in respect of the Mortgage Loans, the Primary Servicer’s right to payment of its Sub-Servicing Fee pursuant to this clause (ii) with respect to the Mortgage Loans being limited to amounts received on or in respect of the Mortgage Loans (whether in the form of payments, Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds) that are allocable as a recovery of interest thereon;
(iii) to pay to itself, as additional servicing compensation in accordance with Section 3.12(a) of the Pooling and Servicing Agreement, interest and investment income earned in respect of amounts held in the Primary Servicer Collection Account as provided in Section 3.01(c)(13) of this Agreement (but only to the extent of the net investment earnings with respect to the Primary Servicer Collection Account for the period from and including the prior Primary Servicer Remittance Date to and including such Primary Servicer Remittance Date);
(iv) to clear and terminate the Primary Servicer Collection Account at the termination of this Agreement pursuant to Section 9.01 of the Pooling and Servicing Agreement, as modified herein; and
(v) to remove any amounts deposited in the Primary Servicer Collection Account in error.
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The Primary Servicer shall keep and maintain separate accounting records, on a loan-by-loan basis and on a property-by-property basis when appropriate, for the purpose of justifying any withdrawal, debit or credit from its Primary Servicer Collection Account. On each Primary Servicer Remittance Date, all income and gain realized from investment of funds to which the Primary Servicer is entitled shall be subject to withdrawal by such Primary Servicer. The last paragraph of Section 3.06(a) of the Pooling and Servicing Agreement is incorporated herein.
(12) Section 3.06A is not incorporated herein. The Primary Servicer may, from time to time, make withdrawals from the Primary Servicer Loan Combination Custodial Account for any of the following purposes (the order set forth below not constituting an order of priority for such withdrawals):
(i) to remit (A) to the Master Servicer for deposit in the Collection Account the amounts required to be so deposited pursuant to Section 4.06(a)(i)-(iv) of the Pooling and Servicing Agreement and Section 3.01(c)(36) of this Agreement and (B) to the Serviced Companion Loan Holder all amounts on deposit payable to the related Serviced Companion Loan Holder pursuant to the Co-Lender Agreement;
(ii) to the extent not otherwise required to be applied against Prepayment Interest Shortfalls, to pay itself earned and unpaid Primary Servicing Fees, with respect to the Serviced Loan Combination, the Primary Servicer’s right to payment pursuant to this clause (ii) with respect to any Serviced Loan Combination being limited to amounts on deposit in the Primary Servicer Loan Combination Custodial Account that are received on or in respect of such Serviced Loan Combination (whether in the form of payments, Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds) that are allocable as a recovery of interest thereon;
(iii) to pay itself, as additional servicing compensation in accordance with Section 3.12(a) of the Pooling and Servicing Agreement, interest and investment income earned in respect of amounts held in the Primary Servicer Loan Combination Custodial Account as provided in Section 3.01(c)(13) of this Agreement, but only to the extent of the net investment earnings, if any, with respect to the Primary Servicer Loan Combination Custodial Account for any Collection Period;
(iv) to clear and terminate the Primary Servicer Loan Combination Custodial Account at the termination of this Agreement pursuant to Section 9.01 of the Pooling and Servicing Agreement, as modified herein; and
(v) to remove any amounts deposited in the Primary Servicer Loan Combination Custodial Account in error.
The second paragraph of Section 3.06A(a) of the Pooling and Servicing Agreement is incorporated herein. The Primary Servicer shall keep and maintain
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separate accounting records, on a Mortgage Loan-by-Mortgage Loan and Companion Loan-by-Companion Loan basis for the purpose of justifying any withdrawal, debit or credit from the Primary Servicer Loan Combination Custodial Account. Upon written request, the Primary Servicer shall provide to the Master Servicer such records. Sections 3.06A(b) and (c) of the Pooling and Servicing Agreement are incorporated herein.
On or prior to the related Serviced Loan Combination Remittance Date in each calendar month, the Primary Servicer shall remit to the related Serviced Companion Loan Holder all amounts on deposit in the Primary Servicer Loan Combination Custodial Account payable to such Serviced Companion Loan Holder pursuant to the related Co-Lender Agreement with respect to the related Serviced Companion Loan, exclusive of any applicable Trust Reimbursement Amount.
(13) Section 3.07 is not incorporated herein. The Primary Servicer may invest funds in the Primary Servicer Collection Account, the Primary Servicer Loan Combination Custodial Account and/or any Mortgagor Account maintained by it on the same terms as the Master Servicer may invest funds in the Collection Account, Loan Combination Custodial Account and/or Mortgagor Account, and subject to the same rights, restrictions and obligations regarding maturity dates, gains, losses, withdrawals, possession and control of Permitted Investments and Permitted Investments payable on demand. Without limiting the generality of the foregoing, any investment of funds in the Primary Servicer Collection Account, the Primary Servicer Loan Combination Custodial Account and/or Mortgagor Account shall be made in the name of the Certificate Administrator (on behalf of the Trustee for the benefit of the Certificateholders) or in the name of a nominee of the Certificate Administrator.
(14) Sections 3.08(a). References to the Collection Account and the Loan Combination Custodial Account shall be references to the Primary Servicer Collection Account or the Primary Servicer Loan Combination Custodial Account, as applicable. All insurance policies caused to be maintained by the Primary Servicer hereunder shall also name the Master Servicer as an additional insured and loss payee. Within thirty (30) days after the Closing Date, the Primary Servicer shall forward to the Master Servicer a fully completed certificate of insurance in the form of Exhibit H attached hereto. Without limiting the generality of the obligations of the Primary Servicer hereunder, the Primary Servicer shall monitor and certify as to the status of insurance policies relating to the Serviced Loan Combination on a quarterly basis starting for the quarter ending in March of 2019 within thirty (30) days of the end of such quarter as required by, and in the form of, Exhibit E attached hereto, pursuant to Section 3.01(c)(36) of this Agreement. The Primary Servicer shall promptly notify the Master Servicer of any Mortgaged Property that is not insured against terrorist or other similar acts. The Master Servicer or the Special Servicer shall make all determinations with respect to terrorism insurance matters required to be made under Section 3.08 of the Pooling and Servicing Agreement, and the Primary Servicer shall reasonably cooperate with the Master Servicer in connection therewith.
(15) Section 3.08(b). References to the Collection Account and the Loan Combination Custodial Account shall be references to the Primary Servicer Collection Account or the Primary Servicer Loan Combination Custodial Account, as applicable.
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(16) Section 3.08(c). The fidelity bond and insurance policies required hereunder shall also name the Master Servicer as additional insured and loss payee.
(17) Section 3.09. Notwithstanding anything herein to the contrary, the Primary Servicer shall not take any action with respect to any assumption, transfer, defeasance or other action contemplated by Section 3.09 of the Pooling and Servicing Agreement unless the Primary Servicer has confirmed with the Master Servicer that the Master Servicer is either obligated to process or that the Master Servicer and the Special Servicer have mutually agreed that the Master Servicer shall process such request pursuant to Section 3.09 of the Pooling and Servicing Agreement. Following such confirmation, the Primary Servicer will not permit or consent to any assumption, transfer, defeasance or other action contemplated by Section 3.09 of the Pooling and Servicing Agreement without the prior written consent of the Master Servicer. With respect to any such proposed action, the Primary Servicer shall promptly notify the Master Servicer of any Mortgagor request for such action, and perform and forward to the Master Servicer any analysis, recommendation or other information required to be prepared and/or delivered by the Master Servicer under Section 3.09 of the Pooling and Servicing Agreement. The Master Servicer, not the Primary Servicer, will deal directly with the Special Servicer, the Controlling Class Representative and the Rating Agencies in connection with obtaining any necessary approval or consent from the Special Servicer. If the Primary Servicer shall process such assumption, transfer, defeasance or other action and the Master Servicer consents to such transaction, the Primary Servicer shall document and close such transaction.
(18) Section 3.10. References to the Master Servicer shall not be deemed to be references to the Primary Servicer for purposes of Section 3.10 (other than Section 3.10(h)) of the Pooling and Servicing Agreement.
(19) Section 3.11. The references to the Collection Account shall be references to the Primary Servicer Loan Combination Custodial Account. No expense incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Primary Servicer Loan Combination Custodial Account.
(20) Section 3.12(a). References to the Servicing Fee shall be references to the Primary Servicing Fee and references in the definition of “Servicing Fee” to the Servicing Fee Rate shall be references to the Primary Servicing Fee Rate. The last four sentences of the first paragraph and the third paragraph of Section 3.12(a) of the Pooling and Servicing Agreement are not incorporated herein. In addition, the Primary Servicer shall be entitled to receive, as additional servicing compensation, to the extent the Master Servicer is entitled to such amounts under the Pooling and Servicing Agreement, (i) all investment income earned on amounts on deposit in the Primary Servicer Loan Combination Custodial Account and Primary Servicer Collection Account and certain Mortgagor Accounts (to the extent consistent with the related Loan Documents), (ii) 50% of that portion of Excess Penalty Charges relating to late fees (but not Default Interest) on the Serviced Loan Combination to which the Master Servicer is entitled under the Pooling and Servicing Agreement and not required by the Pooling and Servicing Agreement to cover Advance Interest or Additional Trust Fund Expenses, (iii) 100% of any amounts collected by the Primary Servicer for checks returned for insufficient funds, demand fees or similar items with respect to the Serviced Loan Combination to the extent the Master Servicer is entitled to such items under Section 3.12(a) of the Pooling and Servicing Agreement,
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(iv) 50% of that portion of any Assumption Fees and any similar fees to which the Master Servicer is entitled under Section 3.12(a) of the Pooling and Servicing Agreement with respect to the Serviced Loan Combination in connection with matters performed by the Primary Servicer pursuant to Section 3.01(c)(17) of this Agreement, (v) 100% of that portion of any assumption application fees to which the Master Servicer is entitled under Section 3.12(a) of the Pooling and Servicing Agreement with respect to the Serviced Loan Combination in connection with matters performed by the Primary Servicer pursuant to Section 3.01(c)(17) of this Agreement, (vi) 50% of that portion of any Excess Modification Fees, Consent Fees and similar fees to which the Master Servicer is entitled under Section 3.12(a) of the Pooling and Servicing Agreement with respect to the Serviced Loan Combination in connection with matters performed by the Primary Servicer pursuant to Section 3.01(c)(30) of this Agreement, (vii) 50% of that portion of any defeasance fees to which the Master Servicer is entitled under Section 3.12(a) of the Pooling and Servicing Agreement with respect to the Serviced Loan Combination in connection with matters performed by the Primary Servicer pursuant to Section 3.01(c)(17) of this Agreement, and (viii) 100% of that portion of any beneficiary statement charges to which the Master Servicer is entitled under Section 3.12(a) of the Pooling and Servicing Agreement with respect to the Serviced Loan Combination. The Primary Servicer shall not be entitled to Prepayment Interest Excesses, Default Interest or any other amounts not specifically addressed above in this Section 3.01(c)(20).
(21) Section 3.12(d) and (e). The Primary Servicer shall promptly notify the Master Servicer of any request or inquiry described in the second paragraph of Section 3.12(e) of the Pooling and Servicing Agreement (i.e., a request from a Mortgagor, Certificateholder or other Person that requires the assistance of Independent legal counsel or other consultant, as further described in the Pooling and Servicing Agreement).
(22) Section 3.13. The Primary Servicer shall deposit all Prepayment Interest Shortfalls in the Primary Servicer Collection Account or the Primary Servicer Loan Combination Custodial Account, as applicable, on each Primary Servicer Remittance Date.
(23) Section 3.14. The Primary Servicer shall deliver to the Master Servicer the report required under Section 3.14(b) of the Pooling and Servicing Agreement at least five (5) Business Days prior to the date the Master Servicer is required to deliver such report to the Special Servicer.
(24) Section 3.15. The Primary Servicer shall also be subject to Section 3.01(c)(33) of this Agreement. None of the restrictions in Section 3.15 of the Pooling and Servicing Agreement or Section 3.01(c)(33) of this Agreement shall prohibit or restrict oral or written communications, or providing information, between the Primary Servicer, on the one hand, and a Rating Agency, on the other hand, with regard to (i) such Rating Agency’s review of the ratings it assigns to the Primary Servicer, (ii) such Rating Agency’s approval of the Primary Servicer as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s evaluation of the Primary Servicer’s servicing operations in general; provided, however, that the Primary Servicer shall not provide any information relating to the Certificates or the Serviced Loan Combination to a Rating Agency in connection with such review and evaluation by such Rating Agency unless (x) borrower, property or deal specific identifiers are redacted; (y) the Master Servicer confirms to the Primary Servicer in writing that it has in fact previously
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provided such information to the Rule 17g-5 Information Provider and does not provide such information to such Rating Agency until the earlier of (i) receipt of notification from the Rule 17g-5 Information Provider that such information has been posted to the Rule 17g-5 Information Provider’s Website and (ii) after 12:00 p.m. on the first Business Day following the date it has provided such information to the Rule 17g-5 Information Provider; or (z) such Rating Agency has confirmed in writing to the Primary Servicer that it does not intend to use such information in undertaking credit rating surveillance for any Class of Certificates (and the Primary Servicer shall, upon written request, certify to the Depositor (with a copy to the Master Servicer) that it received the confirmation described in this clause (z)). The Primary Servicer shall provide to Master Servicer access to all the Servicing Files, Mortgage Files and servicing systems maintained by the Primary Servicer with respect to the Serviced Loan Combination for audit and review.
(25) Sections 3.18(a) and (b). The Primary Servicer shall promptly (but in no event later than thirty (30) days after the completion of related inspection report) forward to the Master Servicer (at ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic delivery reasonably agreed to by the Master Servicer and the Primary Servicer) a copy of all inspection reports prepared by or on behalf of the Primary Servicer. If any inspection report identifies a “life safety” or other material deferred maintenance item existing with respect to the related Mortgaged Property, the Primary Servicer (x) shall promptly send to the related Mortgagor (with a copy to the Master Servicer by email to ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇) a letter identifying such deferred maintenance item and instructing the related Mortgagor to correct such deferred maintenance item and (y) shall follow up with the related Mortgagor in writing (with a copy to the Master Servicer by email to ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇) and at such frequency as is in accordance with the Servicing Standard to confirm that such deferred maintenance item is being corrected. With respect to the Serviced Loan Combination serviced hereunder, the Primary Servicer shall inform each ground lessor that any notices of default under the related Ground Lease should thereafter be forwarded to the Master Servicer in addition to the Primary Servicer.
(26) Section 3.19.
(27) Section 3.20 is not incorporated herein. The Primary Servicer shall not be permitted to make any Property Advance. The Primary Servicer shall give the Master Servicer not less than five (5) Business Days’ notice before the date on which the Master Servicer is required to make any Property Advance with respect to the Serviced Loan Combination. In addition, the Primary Servicer shall provide the Master Servicer with such information in its possession as the Master Servicer may reasonably request to enable the Master Servicer to determine whether a requested Property Advance would constitute a Nonrecoverable Advance.
(28) Section 3.22(a). The Primary Servicer shall promptly notify the Master Servicer of any event or circumstance that the Primary Servicer deems to constitute a Servicing Transfer Event with respect to the Serviced Loan Combination. The determination as to whether a Servicing Transfer Event has occurred shall be made by the Master Servicer. Upon receipt by the Master Servicer of notice from the Special Servicer than a Specially Serviced Loan has become a Corrected Loan, the Master Servicer shall promptly give the Primary Servicer notice thereof and the obligation of the Primary Servicer to service and administer such Serviced Loan Combination shall resume.
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(29) [Reserved].
(30) Section 3.24. Notwithstanding anything herein to the contrary, the Primary Servicer shall not take any action with respect to any modification, extension, waiver, consent or other action contemplated by Section 3.24 of the Pooling and Servicing Agreement unless the Primary Servicer has confirmed with the Master Servicer that the Master Servicer is either obligated to process or that the Master Servicer and the Special Servicer have mutually agreed that the Master Servicer shall process such request pursuant to Section 3.24 of the Pooling and Servicing Agreement. Following such confirmation, the Primary Servicer will not permit or consent to any modification, extension, waiver, consent or other action contemplated by Section 3.24 of the Pooling and Servicing Agreement without the prior written consent of the Master Servicer. With respect to any such proposed action, the Primary Servicer shall promptly notify the Master Servicer of any Mortgagor request for such action, and perform and forward to the Master Servicer any analysis, recommendation or other information required to be prepared and/or delivered by the Master Servicer under Section 3.24 of the Pooling and Servicing Agreement. The Master Servicer, not the Primary Servicer, will deal directly with the Special Servicer, the Operating Advisor and the Rating Agencies in connection with obtaining any necessary approval or consent from the respective party. If the Primary Servicer shall process such modification, extension, waiver, consent or other action and the Master Servicer consents to such transaction, the Primary Servicer shall document and close such transaction. When forwarding a request for the approval of any lease or renewal or extension thereof, the Primary Servicer shall forward to the Master Servicer the information concerning such lease required by, and in the form of, Exhibit I attached hereto. The Primary Servicer will not permit any Principal Prepayment with respect to the Serviced Loan Combination without the written consent of the Master Servicer. The Primary Servicer shall promptly forward all requests for Principal Prepayments to the Master Servicer, along with a payoff statement (with respect to each Principal Prepayment request) setting forth the amount of the necessary Principal Prepayment calculated by the Primary Servicer.
(31) Section 3.25 is not incorporated herein. The Primary Servicer will not permit any replacement of a Manager for the related Mortgaged Property with respect to the Serviced Loan Combination without the express written consent of the Master Servicer.
(32) Section 3.28 (b)-(d). The Primary Servicer shall copy the Master Servicer (at ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic delivery reasonably agreed to by the Master Servicer and the Primary Servicer) on any reports or notices delivered to the Serviced Companion Loan Holder or its Companion Loan Holder Representative. The Master Servicer shall use reasonable efforts to provide to the Primary Servicer a copy of any modification relating to the Serviced Companion Loan. The Master Servicer, not the Primary Servicer, will deal directly with the Serviced Companion Loan Holder or its Companion Loan Holder Representative in connection with obtaining any necessary consent from or consultation with such party.
(33) Section 3.30 is not incorporated herein. Notwithstanding any provision herein to the contrary, the Primary Servicer shall not deliver any information or documents to the Rating Agencies or make any request to a Rating Agency for a Rating Agency Confirmation; all such deliveries and requests shall be made by, and as determined necessary by, the Master Servicer.
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The Primary Servicer shall not communicate (orally or in writing) with any Rating Agency regarding any of the Loan Documents or any matter related to the Serviced Loan Combination, the related Mortgaged Properties, the related Mortgagors or any other matters in connection with the Certificates or pursuant to this Agreement or the Pooling and Servicing Agreement. The Primary Servicer agrees to comply (and to cause each and every subcontractor, vendor or agent for the Primary Servicer and each of its officers, directors and employees to comply) with the provisions relating to communications with the Rating Agencies set forth in this Section 3.01(c)(33) and the Pooling and Servicing Agreement and shall not deliver to any Rating Agency any report, notice, statement, request for Rating Agency Confirmation or other information the communication of which to the Rating Agencies is restricted by the Pooling and Servicing Agreement.
All information described in the immediately preceding paragraph will be provided by, and all such communications, responses and requests described in the immediately preceding paragraph will be made by, the Master Servicer in accordance with the procedures required by the Pooling and Servicing Agreement. To the extent that the Master Servicer is required to provide any information to, or communicate with, any Rating Agency in accordance with its obligations under the Pooling and Servicing Agreement and such information or communication is regarding the Serviced Loan Combination or the primary servicing by the Primary Servicer under this Agreement, the Primary Servicer shall provide the information to the Master Servicer necessary for the Master Servicer to fulfill such obligations.
(34) Section 3.32.
(35) Section 3.33 is not incorporated herein. The Primary Servicer shall not initiate or become involved in any claim or litigation that falls within the scope of Loan-Related Litigation. Upon becoming aware of or being named in any claim or litigation that falls within the scope of Loan-Related Litigation, the Primary Servicer shall promptly, but in any event no later than five (5) Business Days of the Primary Servicer receiving service of such Loan-Related Litigation, provide written notice thereof to the Master Servicer. Notwithstanding the foregoing, the Primary Servicer shall retain the right to make determinations relating to the claims against the Primary Servicer subject to Section 3.33(g) of the Pooling and Servicing Agreement and the rights of the Special Servicer set forth therein, which shall apply to the Primary Servicer to the extent such provisions apply to the Master Servicer.
(36) Section 4.02(b) is not incorporated herein. The Primary Servicer shall deliver to the Master Servicer, no later than 1:00 p.m. New York City time on the first Business Day following the Determination Date, by electronic transmission in the format designated by the Master Servicer, a CREFC® Delinquent Loan Status Report, the CREFC® Financial File, the CREFC® Property File, the CREFC® Comparative Financial Status Report (except for the first two Distribution Dates), the CREFC® Servicer Watch List and Portfolio Review Guidelines, the CREFC® Total Loan Report and the CREFC® Loan Level Reserve/LOC Report, each providing the required information as of such Determination Date. The Primary Servicer shall also deliver the foregoing reports to any master servicer of a securitization of the Serviced Companion Loan no later than the Serviced Loan Combination Remittance Date. At the request of Master Servicer, the Primary Servicer shall send to each Mortgagor a notice directing the Mortgagor to forward to the Special Servicer annual, quarterly and monthly operating statements, budgets and
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rent rolls of the related Mortgaged Property, and financial statements of the related Mortgagor. The preparation and maintenance by the Primary Servicer of all the reports specified in this Section 3.01(c)(36), including the calculations made therein, shall be done in accordance with CREFC® standards to the extent applicable thereto.
The Primary Servicer shall deliver to the Master Servicer, (a) on a monthly basis, no later than 1:00 p.m. New York City time on the Primary Servicer Reporting Date, by electronic transmission in a format designated by the Master Servicer, the CREFC® Loan Periodic Update File, providing the required information as of such Determination Date, (b) on a monthly basis, no later than 1:00 p.m. New York City time on the Primary Servicer Reporting Date, by electronic transmission in a format designated by the Master Servicer the Collection Report (the information therein to be stated as of the Determination Date) in the form of Exhibit G attached hereto and (c) within thirty (30) days after the end of each calendar quarter, beginning with the quarter ending on March 31, 2019, the certification on the Serviced Loan Combination, including without limitation information regarding UCC financing statements, taxes, insurance premiums and ground rents, required by and in the form of Exhibit E attached hereto. The Primary Servicer shall also deliver the Collection Report on each Serviced Companion Loan Combination Remittance Date. The Primary Servicer shall deliver to the Master Servicer on the second Business Day of each month by electronic transmission in a format designated by the Master Servicer, a remittance report containing scheduled balance information for the Serviced Loan Combination reflecting the scheduled Monthly Payment for such month in the form of Exhibit G attached hereto. In addition, on each day that the Primary Servicer forwards to the Master Servicer any funds pursuant to Section 3.01(c)(37) of this Agreement, the Primary Servicer shall deliver to the Master Servicer by electronic transmission in a format reasonably acceptable to the Master Servicer and the Primary Servicer, a report of the nature of such remittance in the form of Exhibit G attached hereto. The Primary Servicer shall also prepare and deliver to the Master Servicer not later than 1:00 p.m. New York City time by the twenty-fifth day of each month, a certification in the form of Exhibit J attached hereto. The Primary Servicer shall also prepare and deliver to the Master Servicer such other reports as reasonably requested by the Master Servicer from time to time.
The Primary Servicer shall electronically deliver to the Master Servicer in Microsoft Excel format promptly upon completion, and in any event, at least five (5) Business Days before the Master Servicer must deliver or make available such reports, statements and files under the Pooling and Servicing Agreement, a copy of all operating statements, income statements, rent rolls and other reporting information collected by the Primary Servicer and the CREFC® Operating Statement Analysis Report and CREFC® NOI Adjustment Worksheet with respect to the Serviced Loan Combination as required by Section 4.02(b) of the Pooling and Servicing Agreement. The Primary Servicer shall also deliver the foregoing reports to any master servicer of a securitization of the Serviced Companion Loan no later than the related Serviced Loan Combination Remittance Date.
With respect to all reports delivered to the Master Servicer under this Section 3.01(c)(36), such reports shall be sent to ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or such other electronic delivery reasonably agreed to by the Master Servicer and the Primary Servicer.
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(37) Section 4.06 is not incorporated herein. On the Primary Servicer Remittance Date immediately preceding each Distribution Date, the Primary Servicer shall remit to the Master Servicer by wire transfer by 3:00 p.m. Charlotte, North Carolina Time the Available Distribution Amount for such date. Each month, on each Business Day between the Primary Servicer Remittance Date and the Distribution Date, the Primary Servicer shall forward to the Master Servicer by wire transfer the Available Distribution Amount for such date by 3:00 p.m. Charlotte, North Carolina Time. Each month, on each Business Day that the Primary Servicer is not required to remit to the Master Servicer pursuant to the previous two sentences, the Primary Servicer shall forward to the Master Servicer by wire transfer all amounts collected by the Primary Servicer and not previously remitted to the Master Servicer which constitute delinquent payments on the Mortgage Loans and any related late fees or Default Interest to the extent not due to the Primary Servicer. Section 3.01(c)(36) of this Agreement sets forth certain reporting requirements with respect to such remittances. The Primary Servicer shall not be permitted to make P&I Advances.
(38) Sections 10.01, 10.02, 10.03, 10.04, 10.05, 10.06, 10.07, 10.08, 10.09, 10.10, 10.11, 10.12, 10.17 and 10.18. The Primary Servicer shall perform all obligations and be subject to all restrictions and requirements applicable to the Master Servicer or “Primary Servicer” in such Sections as they relate to its duties thereunder. In addition, if the Primary Servicer is a “Servicing Function Participant” or a “Reporting Servicer” it shall perform all obligations and be subject to all restrictions and requirements applicable to a “Servicing Function Participant” or a “Reporting Servicer” in such Sections. For purposes of this Section 3.01(c)(38), the Other Depositor and Other Exchange Act Reporting Party shall mean the Other Depositor and Other Exchange Act Reporting Party relating to the securitization of each Serviced Pari Passu Companion Loan. The Primary Servicer shall cooperate fully with the Master Servicer (and any Other Depositor and any Other Exchange Act Reporting Party) and deliver to the Master Servicer (and any Other Depositor and any Other Exchange Act Reporting Party) any and all statements, reports, certifications, records and any other information in its possession and necessary in the good faith determination of the Master Servicer, the Certificate Administrator, the Trustee, the Depositor, any Other Depositor or any Other Exchange Act Reporting Party, as applicable, to permit the Depositor or any Other Depositor, as applicable, to comply with the provisions of Regulation AB and the Master Servicer to comply with its obligations under Article X of the Pooling and Servicing Agreement, together with such disclosures relating to the Primary Servicer, or the servicing of the Serviced Loan Combination, reasonably believed by the Depositor or any Other Depositor, the Certificate Administrator or the Master Servicer, as applicable, to be necessary in order to effect such compliance. For purposes of this Section 3.01(c)(38) of this Agreement, references to the Trustee, the Certificate Administrator or the Depositor (or any Other Depositor or Other Exchange Act Reporting Party) in Article X of the Pooling and Servicing Agreement shall not be deemed to be references to the Master Servicer but shall remain references to the Trustee, the Certificate Administrator or the Depositor (or any Other Depositor or Other Exchange Act Reporting Party); provided that the Primary Servicer shall copy the Master Servicer on any notice, certificate or information provided to the Trustee, the Certificate Administrator, the Depositor, the Other Exchange Act Reporting Party or the Other Depositor pursuant to this Section 3.01(c)(38) of this Agreement.
With respect to any period that the Primary Servicer is a Servicing Function Participant or a servicer as contemplated by Item 1108(a)(2) of Regulation AB, the Primary Servicer shall
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perform all obligations under Sections 10.01, 10.02 and 10.03 of the Pooling and Servicing Agreement applicable to a servicer as contemplated by Item 1108(a)(2) of Regulation AB (including, without limitation, any obligation or duty the Master Servicer is required under Sections 10.01, 10.02 and 10.03 of the Pooling and Servicing Agreement to cause (or use commercially reasonable efforts to cause) a Servicing Function Participant or such a servicer as contemplated by Item 1108(a)(2) of Regulation AB to perform).
Any Additional Form 10-D Disclosure and related Additional Disclosure Notification required to be delivered by the Primary Servicer shall be delivered to the Master Servicer (and, if the Primary Servicer is an Additional Servicer or a Servicing Function Participant, also to the Depositor, the Certificate Administrator and each Other Depositor and Other Exchange Act Reporting Party to which such Additional Form 10-D Disclosure is relevant for Exchange Act reporting purposes) within the time provided in Section 10.04 of the Pooling and Servicing Agreement. If the Primary Servicer obtains actual knowledge of the incurrence of additional debt or mezzanine debt by a Mortgagor, the Primary Servicer shall promptly, but in no event later than two (2) Business Days, deliver notice to the Master Servicer of such Mortgagor’s incurrence of such debt in the form of Exhibit W-3 to the Pooling and Servicing Agreement.
The Primary Servicer shall provide all the reports required of a Reporting Servicer under Section 10.05 of the Pooling and Servicing Agreement. The Primary Servicer shall provide all reasonable cooperation (with respect to information regarding the Primary Servicer or the Serviced Loan Combination) to enable the Master Servicer to provide any Additional Form 10-K Disclosure. Any Additional Form 10-K Disclosure and related Additional Disclosure Notification required to be delivered by the Primary Servicer shall be delivered to the Master Servicer (and, if the Primary Servicer is an Additional Servicer or a Servicing Function Participant, also to the Depositor, the Certificate Administrator and each Other Depositor and each Other Exchange Act Reporting Party to which the particular Additional Form 10-K Disclosure is relevant for Exchange Act reporting purposes), on or before the fifth Business Day preceding March 1st of each year, beginning February 22, 2019.
The Primary Servicer (without regard to whether the Primary Servicer is a Servicing Function Participant, a Reporting Servicer or Additional Servicer) shall provide a certification substantially in the form of Exhibit Y-8 attached to the Pooling and Servicing Agreement (on which the Master Servicer and its officers, directors and Affiliates, in addition to the Certification Parties, can reasonably rely) to the Master Servicer on or before the fifth Business Day preceding March 1st of each year. If the Primary Servicer is a Reporting Servicer, such certification shall also be provided to the Certifying Person by the time required by the Pooling and Servicing Agreement, and if the Primary Servicer is not a Reporting Servicer, such certification shall be delivered only to the Master Servicer. In addition, the Primary Servicer (a) shall provide such information and assistance as may be reasonably required to cooperate with the Master Servicer in complying with Section 10.06 of the Pooling and Servicing Agreement and (b) shall cooperate with the Master Servicer’s reasonable requests in performing its due diligence for its certification under Section 10.06 of the Pooling and Servicing Agreement.
Any Form 8-K Disclosure Information and related Additional Disclosure Notification required to be delivered by the Primary Servicer shall be delivered to the Master Servicer, the Depositor, the Certificate Administrator and each Other Depositor and Other Exchange Act
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Reporting Party to which such Form 8-K Disclosure Information is relevant for Exchange Act reporting purposes, within the time provided in Section 10.07 of the Pooling and Servicing Agreement.
The Primary Servicer (without regard to whether the Primary Servicer is an Additional Servicer or Servicing Function Participant) shall deliver its Officer’s Certificate required by Section 10.08 of the Pooling and Servicing Agreement to the Master Servicer on or before the fifth Business Day preceding March 1st of each year. If the Primary Servicer is an Additional Servicer, the Primary Servicer shall also deliver such Officer’s Certificate to the Certificate Administrator, the Serviced Companion Loan Holders (or, in the case of a Serviced Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party) and the Depositor, and shall forward a copy to, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative, within the time provided in Section 10.08 of the Pooling and Servicing Agreement, and if the Primary Servicer is not an Additional Servicer, such Officer’s Certificate shall be delivered only to the Master Servicer.
The Primary Servicer (without regard to whether the Primary Servicer is a Servicing Function Participant, a Reporting Servicer or Additional Servicer) shall deliver the items required under Sections 10.09 and 10.10 of the Pooling and Servicing Agreement regarding itself (the “report on an assessment of compliance with Relevant Servicing Criteria” and “accountants’ report”) to the Master Servicer on or before the fifth Business Day preceding March 1st of each year. If the Primary Servicer is a Servicing Function Participant, a Reporting Servicer or Additional Servicer, the report on an assessment of compliance with the Relevant Servicing Criteria and accountants’ report shall also be delivered to the Certificate Administrator, the Trustee, the Serviced Companion Loan Holders (or, in the case of a Serviced Companion Loan that is part of an Other Securitization Trust, the applicable Other Depositor and Other Exchange Act Reporting Party), the Custodian and the Depositor, and only with respect to the accountants’ report, prior to the occurrence and continuance of a Consultation Termination Event, the Controlling Class Representative, within the time provided in Sections 10.09 and 10.10 of the Pooling and Servicing Agreement, and if the Primary Servicer is not a Servicing Function Participant, a Reporting Servicer or Additional Servicer, the report on an assessment of compliance with Relevant Servicing Criteria and accountants’ report shall be delivered only to the Master Servicer.
If any Mortgaged Property that secures a Serviced Pari Passu Companion Loan is a “significant obligor” (within the meaning of Item 1101(k) of Regulation AB), the Primary Servicer shall comply with Section 10.11(b) of the Pooling and Servicing Agreement and shall deliver such information and reports as provided therein to the Master Servicer at least five (5) Business Days before the Master Servicer must deliver such items.
Subject to other provisions of this Agreement restricting the right of the Primary Servicer to retain subservicers or subcontractors, the provisions of Article X of the Pooling and Servicing Agreement regarding retaining a “Primary Servicer,” “Subcontractor,” “Additional Servicer” or “Servicing Function Participant” shall be applicable to any sub-servicer, subcontractor or agent hired by the Primary Servicer to perform any of its obligations hereunder and the Primary Servicer shall comply with such provisions.
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If the Primary Servicer is (or was during any time relevant to the third and fourth paragraphs of Section 10.12) an Additional Servicer or Servicing Function Participant, the Primary Servicer shall perform all of the obligations of an Affected Reporting Party contained in the third and fourth paragraphs of Section 10.12. The Primary Servicer shall also obtain the consent of the Master Servicer (which consent shall not be unreasonably denied, withheld or delayed) when the Depositor’s consent is required under this paragraph.
The Primary Servicer shall indemnify and hold harmless the Master Servicer, each Certification Party, the Certificate Administrator, the Depositor and each Other Depositor (and their respective employees, directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all claims, losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and any other costs, fees and expenses (including without limitation reasonable attorneys’ fees and expenses related to the enforcement of this indemnity and the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation) incurred by such indemnified party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports pursuant to this Agreement, (ii) negligence, bad faith or willful misconduct on the part of the Primary Servicer in the performance of such obligations, (iii) any failure by a Servicer (as defined by Section 10.02(b) of the Pooling and Servicing Agreement) to identify a Servicing Function Participant pursuant to Section 10.02(c) of the Pooling and Servicing Agreement, (iv) the failure of any Servicing Function Participant or Additional Servicer retained by it to perform its obligations to the Master Servicer, the Depositor, any Other Depositor or Certificate Administrator under this Section 3.01(c)(38) by the time required after giving effect to any applicable grace period and cure period, or (v) any Deficient Exchange Act Deliverable regarding, and delivered by or on behalf of, the Primary Servicer.
The Master Servicer shall notify the Primary Servicer if the Primary Servicer becomes a Servicing Function Participant, an Additional Servicer, and/or a Reporting Servicer. Upon request, the Master Servicer shall provide the Primary Servicer with current mailing addresses of the Trustee, the Depositor, the Certificate Administrator, the Companion Loan Holders, the applicable Other Depositor and/or Other Exchange Act Reporting Party to whom the Primary Servicer must deliver Exchange Act-related reports as a result of becoming a Servicing Function Participant, an Additional Servicer and/or a Reporting Servicer. It is acknowledged and agreed that, as of the Closing Date, the Primary Servicer is an Additional Servicer.
If the indemnification provided for in this Section 3.01(c)(38) is unavailable or insufficient to hold harmless any Certification Party, the Master Servicer, the Depositor, any Other Depositor, any employee, director or officer of the Depositor or any Other Depositor, or any other person who controls the Depositor or any Other Depositor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, then the Primary Servicer shall contribute to the amount paid or payable to the indemnified party as a result of the losses, claims, damages or liabilities of the indemnified party in such proportion as is appropriate to reflect the relative fault of the indemnified party on the one hand and the Primary Servicer on the other in connection with a breach of the Primary Servicer’s obligations pursuant to this Section 3.01(c)(38).
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(39) Section 11.01(b). The Primary Servicer shall provide all reasonable cooperation (with respect to information regarding the Serviced Loan Combination in the Primary Servicer’s possession) to enable the Master Servicer to provide the information required pursuant to Section 11.01(b) of the Pooling and Servicing Agreement.
Section 3.02 Merger or Consolidation of the Primary Servicer.
The Primary Servicer shall keep in full effect its existence, rights and franchises as a limited liability company under the laws of the state of its formation except as permitted herein, and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement or the Serviced Loan Combination and to perform its duties under this Agreement.
Any Person into which the Primary Servicer may be merged or consolidated, or any limited liability company resulting from any merger, conversion or consolidation to which the Primary Servicer shall be a party, or any Person succeeding to the business of the Primary Servicer, or any Person succeeding to all or substantially all of the servicing business of the Primary Servicer, shall be the successor of the Primary Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the successor or surviving Person (i) must be a company whose business is the origination and servicing of mortgage loans and shall be authorized to transact business in the state or states in which the Mortgaged Properties it is to service are situated, (ii) must be reasonably acceptable to the Master Servicer, and (iii) shall assume in writing the obligations of the Primary Servicer under this Agreement.
Section 3.03 Limitation on Liability of the Primary Servicer and Others.
Neither the Primary Servicer nor any Affiliates, directors, officers, employees, members, managers, representatives or agents of the Primary Servicer (the “Primary Servicer Parties”) will 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 Primary Servicer Parties against any breach of warranties or representations made herein, or against any liability that would otherwise be imposed on the Primary Servicer by reason of its willful misconduct, bad faith, fraud or negligence (or by reason of any specific liability imposed hereunder for a breach of the Servicing Standard) in the performance of its duties hereunder or by reason of its negligent disregard of its obligations or duties hereunder. The Primary Servicer and any officer, employee or Affiliate of the Primary Servicer may rely in good faith on any document of any kind, prima facie, properly executed and submitted by any appropriate Person respecting any matters arising hereunder. The Primary Servicer shall not be under any obligation to appear in, prosecute or defend any legal action unless such action is related to its duties under this Agreement and either (i) it is specifically required to bear the cost of such action or (ii) such action will not, in its reasonable and good faith judgment, involve it in any ultimate expense or liability for which it would not be reimbursed hereunder; provided, however, that the Primary Servicer may, with the consent of the Master Servicer, undertake any such action which it may deem necessary or desirable in respect to this Agreement and the rights and duties of the parties hereto. In such event, the legal
21
expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities for which the Master Servicer will be liable and the Primary Servicer shall be entitled to be reimbursed to the extent the Master Servicer is reimbursed therefor by the Trust. To the extent provided in the Pooling and Servicing Agreement, the Primary Servicer Parties shall be indemnified by the Trust, against any Losses incurred by the Primary Servicer in connection with any claim, loss, penalty, fine, foreclosure, judgment, liability or legal action relating to this Agreement, other than any Losses (i) that are specifically required to be borne by the Primary Servicer without right of reimbursement pursuant to the terms of this Agreement or (ii) that are incurred by reason of (A) a breach of any representation or warranty by the Primary Servicer or (B) willful misconduct, bad faith, fraud or negligence of the Primary Servicer in the performance of duties under this Agreement or negligent disregard of obligations and duties under this Agreement; provided, however, that the indemnification described in this sentence shall be strictly limited to any actual amount of indemnification received by the Master Servicer under the Pooling and Servicing Agreement as a result of pursuing the Trust on behalf of the Primary Servicer for such indemnification.
Section 3.04 Primary Servicer Not to Resign.
The Primary Servicer shall not resign from the obligations and duties hereby imposed on it except by mutual consent of the Primary Servicer and the Master Servicer, or upon the determination that its duties hereunder are no longer permissible under applicable law and such incapacity cannot be cured by the Primary Servicer. Any such determination permitting the resignation of the Primary Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to the Master Servicer, which Opinion of Counsel shall be in form and substance acceptable to the Master Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Primary Servicer to service the Serviced Loan Combination hereunder, the Primary Servicer acknowledges that the Master Servicer has acted in reliance upon the Primary Servicer’s independent status, the adequacy of its servicing facilities, plant, personnel, records and procedures, its integrity, reputation and financial standing and the continuance thereof. Without in any way limiting the generality of this Section 3.05, the Primary Servicer shall neither assign or transfer this Agreement or the servicing hereunder nor delegate its rights or duties hereunder or any portion thereof, nor sell or otherwise dispose of all or substantially all of its property or assets, without the prior written approval of the Master Servicer, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, prior to any assignment or transfer by the Primary Servicer of this Agreement or the servicing hereunder (the “Primary Servicing Rights”), the Primary Servicer shall allow the Master Servicer an opportunity to bid on the purchase of such Primary Servicing Rights. The Primary Servicer may also solicit bids from other parties independent of the Primary Servicer. If after receipt by the Primary Servicer of all bids, the Master Servicer is not the highest bidder, the Master Servicer will be given the opportunity to submit a second bid and final bid, which bid shall be given equal consideration with all other bids.
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Section 3.06 Indemnification.
The Primary Servicer Parties shall be indemnified by the Master Servicer against any loss, liability or expense (collectively, the “Losses”) incurred by the Primary Servicer in connection with any claim, loss, penalty, fine, foreclosure, judgment, liability or legal action relating to this Agreement resulting from the Master Servicer’s willful misconduct, bad faith, fraud, or negligence in the performance of duties hereunder or negligent disregard of its obligations hereunder. The Primary Servicer shall indemnify and hold harmless the Master Servicer and its directors, officers, representatives, members, managers, agents, employees or affiliates against any Losses incurred by the Master Servicer in connection with any claim, loss, penalty, fine, foreclosure, judgment, liability or legal action relating to this Agreement, the Pooling and Servicing Agreement or the Certificates by reason of (1) any breach by the Primary Servicer of a representation or warranty made by the Primary Servicer in this Agreement or (2) any willful misconduct, bad faith, fraud or negligence by the Primary Servicer in the performance of its obligations or duties under this Agreement or under the Pooling and Servicing Agreement or by reason of negligent disregard of such obligations and duties. Each indemnified party hereunder shall give prompt written notice to the indemnitor of matters which may give rise to liability of such indemnitor hereunder; provided, however, that failure to give such notice shall not relieve the indemnitor of any liability except to the extent of actual prejudice. This Section 3.06 shall survive the termination of this Agreement and the termination or resignation of the Master Servicer or the Primary Servicer.
ARTICLE
IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each, a “Primary Servicer Termination Event”) by the Primary Servicer shall occur and be continuing, that is to say:
(a) any failure by the Primary Servicer (i) to make a required deposit to the Primary Servicer Loan Combination Custodial Account or any Mortgagor Account maintained by the Primary Servicer on the day and by the time such deposit was first required to be made, or (ii) to remit to the Master Servicer any amount required to be so deposited or remitted by the Primary Servicer, which failure is not cured within one (1) Business Day after such deposit or remittance is due; or
(b) any failure on the part of the Primary Servicer to observe or perform its obligations and duties in accordance with Section 3.08 of the Pooling and Servicing Agreement; or
(c) any failure on the part of the Primary Servicer to (a) make available and certify to the Master Servicer the information called for on Exhibit E at any time required hereunder, or (b) to timely make available and certify to the Master Servicer the Collection Report which failure continues unremedied for one (1) Business Day; or
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(d) the Primary Servicer shall fail three (3) times within any twelve (12) month period to (a) timely deposit or remit any amounts required to be deposited or remitted under this Agreement, or (b) timely provide to the Master Servicer any report required by this Agreement to be provided to the Master Servicer; or
(e) any failure (other than a failure referred to in another clause in this Section 4.01) on the part of the Primary Servicer duly to observe or perform in any material respect any other of its covenants or agreements contained in this Agreement, which continues unremedied for a period of twenty (20) days (ten (10) days in the case of a failure to pay the premium for any insurance policy required to be force placed by the Primary Servicer pursuant to this Agreement or in any event such reasonable shorter period of time as is necessary to avoid the commencement of foreclosure proceedings for any lien relating to unpaid real estate taxes or assessments or a lapse in any required insurance coverage) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Primary Servicer by (i) the Master Servicer or (ii) an affected Serviced Companion Loan Holder; provided, if that failure with a 20-day cure period is capable of being cured and the Primary Servicer is diligently pursuing such cure, such 20-day period will be extended an additional forty-five (45) days; provided that the Primary Servicer has commenced to cure such failure within the initial 20-day period and has certified that it has diligently pursued, and is continuing to pursue, a full cure; or
(f) any breach on the part of the Primary Servicer of any representation or warranty contained in this Agreement which materially and adversely affects the interests of the Master Servicer, any Class of Certificateholders or Serviced Companion Loan Holders and which continues unremedied for a period of twenty (20) days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to the Primary Servicer by (i) the Master Servicer or (ii) an affected Serviced Companion Loan Holder; provided if that breach is capable of being cured and the Primary Servicer is diligently pursuing that cure, that 20-day period will be extended an additional forty-five (45) days; provided that the Primary Servicer has commenced to cure such failure within the initial 20-day period and has certified that it has diligently pursued, and is continuing to pursue, a full cure; or
(g) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Primary Servicer and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of forty-five (45) days; or
(h) the Primary Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Primary Servicer, or of or relating to all or substantially all of its property; or
(i) the Primary Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or
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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
(j) the Primary Servicer shall assign or transfer or attempt to assign or transfer all or part of its rights and obligations hereunder except as permitted by this Agreement; or
(k) either ▇▇▇▇▇’▇ or KBRA (or, in the case of Serviced Companion Loan Securities, any Companion Loan Rating Agency) has (i) qualified, downgraded or withdrawn its rating or ratings of one or more Classes of Certificates or one or more classes of Serviced Companion Loan Securities, or (ii) placed one or more Classes of Certificates or one or more classes of Serviced Companion Loan Securities on “watch status” in contemplation of rating downgrade or withdrawal and, in the case of either clauses (i) or (ii), publicly citing servicing concerns with the Master Servicer (because of actions of the Primary Servicer) or the Primary Servicer as the sole or material factor in such rating action (and such qualification, downgrade, withdrawal or “watch status” placement has not been withdrawn by such Rating Agency (or, in the case of Serviced Companion Loan Securities, any Companion Loan Rating Agency) within sixty (60) days of such event); or
(l) the Primary Servicer ceases to have a commercial primary servicer rating of at least “CPS3” from Fitch and that rating is not reinstated within 60 days; or
(m) the net worth of the Primary Servicer, determined in accordance with generally accepted accounting principles shall decline to less than $2 million; or
(n) a Servicer Termination Event by the Master Servicer under the Pooling and Servicing Agreement occurs, which Servicer Termination Event occurred as a result of the failure of the Primary Servicer to perform any obligation required under this Agreement; or
(o) so long as the Trust is subject to the reporting requirements of Regulation AB or the Exchange Act, (A) any failure by the Primary Servicer to deliver by the due date any Exchange Act reporting items required to be delivered to the Master Servicer, the Certificate Administrator or the Depositor under Article X of the Pooling and Servicing Agreement or under this Agreement or to the master servicer under any other pooling and servicing agreement that the depositor is a party to, or (B) any failure by the Primary Servicer to perform in any material respect any of its covenants or obligations contained in this Agreement regarding creating, obtaining or delivering any Exchange Act reporting items required for any party to the Pooling and Servicing Agreement to perform its obligations under Article X of the Pooling and Servicing Agreement or under the Exchange Act reporting requirements of any other pooling and servicing agreement that the Depositor is a party to.
If any Primary Servicer Termination Event shall occur and be continuing, then, and in each and every such case, so long as such Primary Servicer Termination Event shall not have been remedied, the Master Servicer, or in the case of a Primary Servicer Termination Event described in Section 4.01(o) of this Agreement, the Depositor, may terminate, by notice in writing to the Primary Servicer, all of the rights and obligations of the Primary Servicer as Primary Servicer under this Agreement and in and to the Serviced Loan Combination and the proceeds thereof. From and after the receipt by the Primary Servicer of such written notice, all
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authority and power of the Primary Servicer under this Agreement, whether with respect to the Serviced Loan Combination or otherwise, shall pass to and be vested in the Master Servicer pursuant to and under this Section 4.01, and, without limitation, the Master Servicer is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Primary Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Serviced Loan Combination and related documents, or otherwise. The Primary Servicer hereby acknowledges that the Serviced Companion Loan Holder shall be entitled to direct the Master Servicer to replace the Primary Servicer with a successor sub-servicer for the Serviced Loan Combination pursuant to Section 7.01(d) of the Pooling and Servicing Agreement (the “Successor Primary Servicer”) following a Primary Servicer Termination Event. The Primary Servicer agrees that if it is terminated pursuant to this Section 4.01, it shall promptly (and in any event no later than five (5) Business Days subsequent to its receipt of the notice of termination) provide the Master Servicer or Successor Primary Servicer, as applicable, with all documents and records (including, without limitation, those in electronic form) requested by it to enable it to assume the Primary Servicer’s functions hereunder, and shall cooperate with the Master Servicer in effecting the termination of the Primary Servicer’s responsibilities and rights hereunder and the assumption by a successor of the Primary Servicer’s obligations hereunder, including, without limitation, the transfer within one (1) Business Day to the Master Servicer or the Successor Primary Servicer, as applicable, for administration by it of all cash amounts which shall at the time be or should have been credited by the Primary Servicer to the Primary Servicer Loan Combination Custodial Account, the Collection Account, the Loan Combination Custodial Account, any Escrow Account or any Lock-Box Account, or thereafter be received with respect to the Serviced Loan Combination (provided, however, that the Primary Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the date of such termination, and it and its directors, officers, employees and agents shall continue to be entitled to the benefits of Section 3.03 of this Agreement notwithstanding any such termination).
In addition to any other rights the Master Servicer may have hereunder, if the Primary Servicer fails to remit to the Master Servicer any amounts when required to be remitted hereunder, the Primary Servicer shall pay to the Master Servicer interest on the amount of such late remittance at the rate of ▇▇▇▇▇ Fargo Bank, National Association prime rate plus three percent (3%) per annum, applied on a per diem basis for each day such remittance is late (i.e., said per annum rate divided by 365 multiplied by the number of days late); but in no event shall such interest be greater than the maximum amount permitted by law.
In addition to any other rights and remedies available to the Master Servicer hereunder or at law or equity, including, without limitation, the right to a recovery of damages, the Master Servicer may impose, and if so imposed, the Primary Servicer shall pay, the penalties described in this paragraph for any failure by the Primary Servicer to timely provide to the Master Servicer any report or certification required by this Agreement to be provided to the Master Servicer, the Collection Report required by this Agreement, the remittance report in the form of Exhibit G required by this Agreement, or the account reconciliations required by this Agreement (and, with respect to the account reconciliations, such failure continues unremedied for thirty (30) days after the time within which they are required to be delivered) (each such failure referred to herein as a
26
“Primary Servicer Delinquency”). The Master Servicer may impose on the Primary Servicer a penalty of $500.00 for the first Primary Servicer Delinquency to occur hereunder (“Initial Primary Servicer Delinquency”), a penalty of $1,000.00 for the next Primary Servicer Delinquency occurring within two (2) years following an Initial Primary Servicer Delinquency, and a penalty of $1,500.00 for any other Primary Servicer Delinquency occurring within two (2) years following an Initial Primary Servicer Delinquency; provided, however, that if no Primary Servicer Delinquency occurs during any two (2) year period, the first Primary Servicer Delinquency thereafter shall be deemed to be an “Initial Primary Servicer Delinquency”. The penalties provided for in this paragraph are not intended to constitute liquidated damages. The rights and remedies of the Master Servicer under this Agreement are cumulative with, and not exclusive of, any other rights or remedies which it would otherwise have.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Primary Servicer in the performance of its obligations hereunder and its consequences. Upon any such waiver of a past default, such default shall cease to exist, and any Primary Servicer Termination Event 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 4.03 Other Remedies of Master Servicer.
During the continuance of any Primary Servicer Termination Event, so long as such Primary Servicer Termination Event shall not have been remedied, the Master Servicer, in addition to the rights specified in Section 4.01 of this Agreement, shall have the right, in its own name, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies (including the institution and prosecution of all judicial, administrative and other proceedings and the filing of proofs of claim and debt in connection therewith). Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Primary Servicer Termination Event.
ARTICLE
V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights, obligations and responsibilities of the Primary Servicer shall terminate (without payment of any penalty or termination fee) (i) upon the later of the final payment or other liquidation (or any advance with respect thereto) of the last Mortgage Loan and the remittance of all funds due hereunder or if the last Mortgage Loan becomes an REO Mortgage Loan or the related Mortgaged Property becomes REO Property; (ii) by mutual consent of the Primary Servicer and the Master Servicer
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in writing; (iii) pursuant to Section 5.02 of this Agreement; (iv) at the option of any purchaser of one or more Mortgage Loans pursuant to the Pooling and Servicing Agreement, upon such purchase and only with respect to such purchased Mortgage Loan or Mortgage Loans, subject to the Primary Servicer’s rights to retain accrued and unpaid Primary Servicing Fees; (v) upon the Serviced Loan Combination becoming a Specially Serviced Loan; (vi) at the option of the Trustee if the Trustee has assumed the duties of the Master Servicer or by any successor Master Servicer, without cost or obligation to the assuming party or the Trust Fund, upon the assumption by such party of the obligations of the Master Servicer pursuant to Section 7.02 of the Pooling and Servicing Agreement; (vii) upon termination of the Pooling and Servicing Agreement; or (viii) with respect to the Serviced Loan Combination, upon the Servicing Shift Date. Notwithstanding anything herein to the contrary, the Primary Servicer shall not receive any Primary Servicing Fee upon termination of this Agreement.
Section 5.02 Termination With Cause.
The Master Servicer may, at its sole option, terminate any rights the Primary Servicer may have hereunder with respect to the Serviced Loan Combination as provided in Section 4.01 of this Agreement upon the occurrence of a Primary Servicer Termination Event.
Any notice of termination shall be in writing and delivered to the Primary Servicer as provided in Section 6.05 of this Agreement.
Additionally, the Depositor may terminate any rights the Primary Servicer may have hereunder with respect to the Serviced Loan Combination at any time following any failure of the Primary Servicer to deliver any Exchange Act reporting items that the Primary Servicer is required to deliver under Regulation AB or as otherwise contemplated by Article X of the Pooling and Servicing Agreement.
Section 5.03 Intentionally Deleted.
Section 5.04 Termination of Duties with Respect to Specially Serviced Loans.
At such time as the Serviced Loan Combination becomes a Specially Serviced Loan, the obligations and duties of the Primary Servicer set forth herein with respect to such Specially Serviced Loan shall cease and the Serviced Loan Combination shall no longer be subject to this Agreement.
ARTICLE
VI
MISCELLANEOUS
Section 6.01 Successor to the Primary Servicer.
Prior to termination of the Primary Servicer’s responsibilities and duties under this Agreement pursuant to Sections 3.04, 4.01, 5.01 or 5.02 of this Agreement, the Master Servicer shall (i) succeed to and assume all of the Primary Servicer’s responsibilities, rights, duties and obligations under this Agreement, or (ii) appoint a successor which satisfies the criteria for a successor Primary Servicer in Section 3.02 of this Agreement and which shall succeed to all
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rights and assume all of the responsibilities, duties and liabilities of the Primary Servicer under this Agreement accruing following the termination of the Primary Servicer’s responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Primary Servicer shall, upon the request of the Master Servicer, make available its financial statements and other records relevant to the performance of the Primary Servicer’s obligations hereunder. It is acknowledged that the Primary Servicer and the Master Servicer have entered into that certain confidentiality and nondisclosure agreement dated August 8, 2013 (the “NDA”), and that any financial statements and other information relating to the Primary Servicer provided by the Primary Servicer to the Master Servicer pursuant to this Agreement for the purpose of enabling the Master Servicer to receive information related to sub-servicer reviews are subject to the terms of the NDA by its terms; provided that information regarding the Serviced Loan Combination, the Mortgagors or Mortgaged Properties shall not be subject to the NDA; and provided, further, that the NDA shall not be deemed to restrict the Master Servicer’s use of information for the purpose of evaluating the Primary Servicer’s performance under, and compliance with, this Agreement.
Section 6.03 Closing.
The closing for the commencement of the Primary Servicer to perform the servicing responsibilities under this Agreement with respect to the Serviced Loan Combination shall take place on the Closing Date. At the Master Servicer’s option, the closing shall be either by telephone, confirmed by letter or wire as the parties shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the Pooling and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following documents:
(a) to be provided by the Primary Servicer:
(i) this Agreement executed by the Primary Servicer;
(ii) an Officer’s Certificate of the Primary Servicer, dated the Closing Date and in the form of Exhibit B hereto, including all attachments thereto;
(iii) Reserved; and
(iv) the account certifications in the form of Exhibit F hereto required by Sections 3.01(c)(8)-(10) of this Agreement, fully completed; and
(b) to be provided by the Master Servicer:
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(i) this Agreement executed by the Master Servicer; and
(ii) the Mortgage Loan Schedule, with one copy to be attached to each counterpart of this Agreement as Exhibit A hereto; and
(iii) the Pooling and Servicing Agreement substantially in the form of Exhibit C hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be in writing and shall be deemed to have been duly given when delivered to the following addresses:
| (i) | if to the Master Servicer: |
▇▇▇▇▇
Fargo Bank, National Association
Commercial Mortgage Servicing
Three ▇▇▇▇▇ Fargo
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Reference: CGCMT 2018-C6 Asset Manager
with
a copy to:
▇▇▇▇▇ Fargo Bank, National Association
Legal Department
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., TW-30
▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Reference: Commercial Mortgage Servicing Legal Support
with a copy to:
K&L
Gates LLP
Hearst Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
| (ii) | if to the Primary Servicer: |
Berkeley
Point Capital LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director and Head of Servicing
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with a copy to:
Berkeley
Point Capital LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇-Legal Department
or such other address as may hereafter be furnished to the other party by like notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction as to the Serviced Loan Combination shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. If the invalidity of any part, provision, representation or warranty of this Agreement shall deprive any party of the economic benefit intended to be conferred by this Agreement, the parties shall negotiate, in good faith, to develop a structure the economic effect of which is nearly as possible the same as the economic effect of this Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument.
Section 6.08 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 6.09 Protection of Confidential Information.
The Primary Servicer shall keep confidential and shall not divulge to any party other than the Master Servicer, the Depositor, the Special Servicer, the Trustee or the Serviced Companion Loan Holders, without the Master Servicer’s prior written consent, any information pertaining to the Serviced Loan Combination or any borrower thereunder, except to the extent that it is appropriate for the Primary Servicer to do so in working with legal counsel, auditors, taxing authorities or other governmental agencies or in accordance with this Agreement.
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Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is conveying, and the Primary Servicer is receiving, only a contract for servicing the Serviced Loan Combination. Accordingly, the parties hereby acknowledge that the Trustee remains the sole and absolute beneficial owner of the Mortgage Loans and all rights related thereto and that the Serviced Companion Loan Holder remains the sole and absolute beneficial owner of the Serviced Pari Passu Companion Loans.
Section 6.11 Third Party Beneficiary.
The Trustee, for the benefit of the Certificateholders and the related Companion Loan Holder, and the Trust, as holder of the Lower-Tier Regular Interests, shall each be a third party beneficiary under this Agreement, provided that, except to the extent the Trustee or its designee assumes the obligations of the Master Servicer hereunder as contemplated by Section 6.12 of this Agreement, none of the Trustee, the Fund, the Certificate Administrator, the Operating Advisor, any successor Master Servicer, the Special Servicer, any Certificateholder or the related Companion Loan Holder shall have any duties under this Agreement or any liabilities arising herefrom. The Depositor and each Certification Party shall be a third party beneficiary under this Agreement solely with respect to the obligations of the Primary Servicer under Section 3.01(c)(38) of this Agreement and, with respect to the Depositor, Section 4.01 of this Agreement.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable by the Primary Servicer and the Master Servicer and the respective successors and assigns of the Primary Servicer and the Master Servicer. This Agreement shall not be assigned, pledged or hypothecated by the Primary Servicer to a third party except as otherwise specifically provided for herein. If the Master Servicer shall for any reason no longer act in such capacity under the Pooling and Servicing Agreement (including by reason of a Servicer Termination Event), the Trustee or its designee or any other successor to the Master Servicer may thereupon assume all of the rights and, except to the extent they arose prior to the date of assumption, obligations of the Master Servicer under this Agreement, subject to the Primary Servicer’s rights hereunder, including the right to retain accrued and unpaid Primary Servicing Fees.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and signed by the party against whom such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The Exhibits to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement.
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Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference only, and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties regarding the subject matter hereof and may not be varied or terminated except by a written agreement conforming to the provisions of Section 6.18 of this Agreement. All prior negotiations or representations of the parties are merged into this Agreement and shall have no force or effect unless expressly stated herein.
Section 6.17 Further Agreement.
The Primary Servicer and the Master Servicer each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the Primary Servicer and the Master Servicer. The Master Servicer shall not consent to any modification to the Pooling and Servicing Agreement in any manner which would increase the obligations or limit the rights of a Primary Servicer under the Pooling and Servicing Agreement or under this Agreement without the prior written consent of the Primary Servicer (which consent shall not be unreasonably withheld).
Section 6.19 Exchange Act Rule 17g-5 Procedures.
(a) Notwithstanding any provision herein to the contrary but subject to Section 6.19(c) of this Agreement and except as required by law, the Primary Servicer shall not provide any information directly to, or communicate with, either orally or in writing, any Rating Agency regarding the Certificates or the Serviced Loan Combination relevant to the Rating Agency’s surveillance of the Certificates or Serviced Loan Combination, including, but not limited to, providing responses to inquiries from the Rating Agency regarding the Certificates or the Serviced Loan Combination and requests for a Rating Agency Confirmation. All such information will be provided by, and all such communications, responses and requests will be made by, the Master Servicer in accordance with the procedures required by the Pooling and Servicing Agreement. To the extent that the Master Servicer is required to take any action under the Pooling and Servicing Agreement to comply with Exchange Act Rule 17g-5, the Primary Servicer shall cooperate and provide any information reasonably requested by the Master Servicer to enable the Master Servicer to comply with such obligations.
(b) The Primary Servicer hereby expressly agrees to indemnify and hold harmless the Master Servicer and the Depositor and their respective officers, directors, shareholders, members, managers, employees, agents, Affiliates and controlling persons, and the Trust Fund (each, an “Indemnified Party”), from and against any and all losses, liabilities, damages, claims,
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judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses), joint or several, to which any such Indemnified Party may become subject, under the Securities Act, the Exchange Act or otherwise, pursuant to a third-party claim, insofar as such losses, liabilities, damages, claims, judgments, costs, fees, penalties, fines, forfeitures or other expenses (including reasonable legal fees and expenses) arise out of or are based upon (i) the Primary Servicer’s breach of this Section 6.19 or (ii) a determination by the Rating Agency that it cannot reasonably rely on representations made by the Depositor or any Affiliate thereof pursuant to Exchange Act Rule 17g-5(a)(3), to the extent caused by any such breach referred to in clause (i) above by the Primary Servicer, and will reimburse such Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim, as such expenses are incurred.
(c) None of the foregoing restrictions in this Section 6.19 prohibit or restrict oral or written communications, or providing information, between the Primary Servicer and any Rating Agency with regard to (i) such Rating Agency’s review of the ratings it assigns to the Primary Servicer, (ii) such Rating Agency’s approval of the Primary Servicer as a commercial mortgage master, special or primary servicer or (iii) such Rating Agency’s evaluation of the Primary Servicer’s servicing operations in general; provided, however, that the Primary Servicer shall not provide any information relating to the Certificates or the Serviced Loan Combination to such Rating Agency in connection with such review and evaluation by such Rating Agency unless (x) borrower, property or deal specific identifiers are redacted; (y) the Master Servicer confirms to the Primary Servicer in writing that it has in fact previously provided such information to the Rule 17g-5 Information Provider and does not provide such information to such Rating Agency until the earlier of (i) receipt of notification from the Rule 17g-5 Information Provider that such information has been posted to the Rule 17g-5 Information Provider’s Website and (ii) after 12:00 p.m. on the first Business Day following the date it has provided such information to the Rule 17g-5 Information Provider; or (z) such Rating Agency has confirmed in writing to the Primary Servicer that it does not intend to use such information in undertaking credit rating surveillance for any Class of Certificates (and the Primary Servicer shall, upon written request, certify to the Depositor (with a copy to the Master Servicer) that it received the confirmation described in this clause (z)).
Section 6.20 Notification to Primary Servicer Concerning REO Property
The Master Servicer shall notify the Primary Servicer if the Serviced Loan Combination becomes an REO Loan or if a related Mortgage Property becomes REO Property.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Primary Servicer and the Master Servicer have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first above written.
| ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Director | ||
CGCMT ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Primary Servicing Agreement
IN WITNESS WHEREOF, the Primary Servicer and the Master Servicer have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first above written.
| Berkeley Point Capital LLC, dba Newmark ▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Title: Managing Director | ||
CGCMT ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Primary Servicing Agreement
EXHIBIT A
MORTGAGE
LOAN SCHEDULE
MORTGAGE LOANS
| ID | Property Name | Cut-off Date Balance | Primary Servicing Fee |
| 12 | Riverwalk II | $25,000,000 | 0.00125% |
COMPANION LOANS
| Loan Name | Cut-off Date Balance | Primary Servicing Fee |
| Riverwalk II | $35,000,000 | 0.00125% |
A-1
EXHIBIT B
PRIMARY
SERVICER’S OFFICER’S CERTIFICATE
SERIES CGCMT 2018-C6
I, [__________], hereby certify that I am the duly elected [______________] of Berkeley Point Capital LLC, a [___________] organized under the laws of the State of [____________] (the “Primary Servicer”) and further as follows:
| 1. | Attached hereto as Exhibit 1 is a true, correct and complete copy of the [certificate of formation][articles of incorporation] of the Primary Servicer which are in full force and effect on the date hereof and which have been in effect without amendment, waiver, rescission or modification since January 1, 2009. |
| 2. | Attached hereto as Exhibit 2 is a true, correct and complete copy of the [organization document] of the Primary Servicer which are in effect on the date hereof and which have been in effect without amendment, waiver, rescission or modification since January 1, 2009. |
| 3. | Attached hereto as Exhibit 3 is an original certificate of good standing of the Primary Servicer, issued on [______] [_], 2016, and no event has occurred since the date thereof which would impair such standing. |
| 4. | Attached hereto as Exhibit 4 is a true, correct and complete copy of the corporate resolutions of the Board of Directors of the Primary Servicer authorizing the Primary Servicer to execute and deliver the Primary Servicing Agreement, dated as of December 1, 2018 (the “Primary Servicing Agreement”), by and between the Primary Servicer and ▇▇▇▇▇ Fargo Bank, National Association and such resolutions are in effect on the date hereof and have been in effect without amendment, waiver, rescission or modification since August 31, 2011. |
| 5. | Either (i) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Primary Servicer of or compliance by the Primary Servicer with the Primary Servicing Agreement or the consummation of the transactions contemplated by the Primary Servicing Agreement; or (ii) any required consent, approval, authorization or order has been obtained by the Primary Servicer. |
| 6. | Neither the consummation of the transactions contemplated by, nor the fulfillment of the terms of the Primary Servicing Agreement, conflicts or will conflict with or results or will result in a breach of or constitutes or will constitute a default under the charter or by-laws of the Primary Servicer, the terms of any indenture or other agreement or instrument to which the Primary Servicer is a party or by which it is bound or to which it is subject, or any statute or order, rule, regulation, writ, injunction or decree of any court, governmental authority or regulatory body to which the Primary Servicer is subject or by which it is bound. |
B-1
| 7. | There is no action, suit, proceeding or investigation pending or to the best of my knowledge threatened against the Primary Servicer which, in our judgment, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial conditions, properties or assets of the Primary Servicer or in any material impairment of the right or ability of the Primary Servicer to carry on its business substantially as now conducted or in any material liability on the part of the Primary Servicer or which would draw into question the validity of the Primary Servicing Agreement or of any action taken or to be taken in connection with the transactions contemplated hereby, or which would be likely to impair materially the ability of the Primary Servicer to perform under the terms of the Primary Servicing Agreement. |
| 8. | Each person listed on Exhibit 5 attached hereto who, as an officer or representative of the Primary Servicer, signed the Primary Servicing Agreement and any other document delivered prior hereto or on the date hereof in connection with the Primary Servicing Agreement, was, at the respective times of such signing and delivery, and is now, a duly elected or appointed, qualified and acting officer or representative of the Primary Servicer, who holds the office set forth opposite his or her name on Exhibit 5, and the signatures of such persons appearing on such documents are their genuine signatures. |
| 9. | The Primary Servicer is duly authorized to engage in the transactions described and contemplated in the Primary Servicing Agreement. |
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the Primary Servicer.
| Dated: | By | |||
| Name: | ||||
| Title: | ||||
I, [____________], an [____________________] of Berkeley Point Capital LLC, hereby certify that [______________] is the duly elected, qualified and acting Senior Vice President of the Primary Servicer and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
| Dated: | By | |||
| Name: | ||||
| Title: | ||||
B-2
EXHIBIT 5
to
Primary Servicer’s Officer’s Certificate
| Name | Title | Signature |
B-3
EXHIBIT C
POOLING AND SERVICING AGREEMENT
Previously Delivered.
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EXHIBIT D
[RESERVED]
D-1
EXHIBIT E
QUARTERLY
SERVICING CERTIFICATION
| Primary Servicer: |
RE:
Series CGCMT 2018-C6
Pursuant to the Servicing Agreement(s) between ▇▇▇▇▇ Fargo Bank, National Association and the above referenced Primary Servicer, we certify that with respect to the mortgage loans and serviced companion loans serviced by us for ▇▇▇▇▇ Fargo Bank, National Association that as of the quarter ending _______________ except as otherwise noted below:
| ● | All taxes, assessments and other governmental charges levied against the mortgaged premises, ground rents payable with respect to the mortgaged premises, if any, which would be delinquent if not paid, have been paid. |
| ● | All required insurance policies are in full force and effect on the mortgaged premises in the form and amount and with the coverage required by the loan documents. |
| ● | On all required insurance policies, the loss payee is in the name of the Trust. |
| ● | All UCC Financing Statements have been renewed prior to expiration. |
| ● | All reserves are maintained and disbursed in accordance with the loan documents and no expired reserves exist. |
| ● | All letters of credit are transferred to the Trust as beneficiary and are properly renewed. |
| ● | Lockboxes are being serviced in accordance with loan documents. |
| ● | All required loan documents, third party reports and underwriting files are complete and all applicable loan documents have been properly assigned to the Trust. |
| EXCEPTIONS: | |
| Servicing Officer | Date |
E-1
EXHIBIT F
FORM
OF ACCOUNT CERTIFICATION
SERIES CGCMT 2018-C6
| Securitization: |
| Sub Servicer: |
| New Account | Change of Account Information |
| Indicate purpose of account (check all that apply): |
| Principal & Interest | Deposit Clearing | |||
| Taxes & Insurance | Disbursement Clearing | |||
| Reserves (non-interest bearing) | Suspense | |||
| Reserves (interest bearing) |
| Account Number: |
| Account Name: |
| Depository Institution (and Branch): |
| Name: |
| Street: |
| City, State, Zip: |
| Rating Agency: | Rating: |
Please note that the name of the account must follow the guideline specifications detailed in the applicable agreement.
| Prepared by: |
| Signature: |
| Title: |
| Date: |
| Telephone: | Fax: |
F-1
EXHIBIT G
FORM OF COLLECTION REPORT
SERIES CGCMT 2018-C6
Month of________
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 |
|
Sched Addl Sub-Sub Fee |
Neg Am/ Deferred Int Amount |
|||||||||||||||||||||||||||||||||||||
| Sub Serv ID | Master Servicer Loan# | Sub- Servicer Loan# | Prosp ID | Sched Due Date |
Begin Balance Prior to Pmt | Ending Balance After Pmt | Paid Thru Date | Current Note Rate | Sub- Servicer Fee Rate | Sched Prin Pmt | Sched Int Pmt | Sched P&I Amount | Sched Sub-Serv Fee | Unsched Principal Rec’d | Other Principal Adjust | Other Interest Adjust | Liq/ Prepmt Date | Prepmt Penalty / YM Rec’d | Prepmt Int Exc/Short | Liq/ Prepmt Code | T&I Advances O/S | Pmt Eff Date Recd | Actual Principal Rec’d | Actual (Gross) Interest Rec’d | Actual Sub-Servicer Fee Paid | Addl Sub-Sub Fee Paid | Actual (Net) Interest Rec’d | Late Charges Rec’d | Default Interest Rec’d | Assum Fees Rec’d | Addl Fees Rec’d | Remittance Amount | Actual Loan Balance | Total Reserve Balance | Pmt Loan Status | Comments | ||
| 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | |||||||||||||||||||
| NET REMIT TO MS | - | |||||||||||||||||||||||||||||||||||||
G-1
EXHIBIT H
FORM
OF CERTIFICATE OF INSURANCE
| Primary Servicer: |
RE: Series CGCMT 2018-C6
Pursuant to the Primary Servicing Agreement(s) between ▇▇▇▇▇ Fargo Bank, National Association and the above-named Primary Servicer, we certify with respect to the Serviced Loan Combination serviced by us for ▇▇▇▇▇ Fargo Bank, National Association that all required insurance policies are in full force and effect on the mortgaged premises in the form and amount and with the coverage required by the Servicing Agreement(s).
| Servicing Officer | Date |
H-1
EXHIBIT I
NEW LEASE INFORMATION
| Loan # | Property Type: | Tenant: |
| Property Name/Address: |
| Term (Years, Months): | Sq Ft Gross Rentable: | Net Rentable |
| Begin Lease Date: | Retail |
| End Lease Date: | Office |
| Occupancy Date (if diff): | Other |
| Minimum Rent | (S/SF/YR) |
| (Mo/Yr) | Escalation: | CPI | Other | ||
| Change to | on | ||||
| Change to | on | ||||
| Change to | on | ||||
| Change to | on |
Percentage Rent
| % Amount | For | % Rent Due: | |
| For | Monthly | ||
| Up to | Quarterly | ||
| Up to | Annually |
| Breakpoint | (S/Yr) | Sales Report Due: | |||
| (Mo/Yr) | |||
| Change to | on | Monthly | |
| Change to | on | Quarterly | |
| Change to | on | Annually |
Recoveries
| Taxes | Per |
| Insurance | Per |
| Cam | Per |
| HVAC | Per |
| Adver/Promo | Per |
| Per | |||||
| Per | |||||
| Management | Per |
I-1
Renewal Options
| Term | SF |
| Minimum rent | Gross Rentable |
| % Rent | Net Rentable |
Landlord Costs
| Alterations: |
| Commissions: |
| Moving Allowances: |
| Buyout Clauses: |
| Other: |
| Building Insurance Requirements | |
Tenant
maintains fire & ED on building(s); will need coverage to renew Does not furnish building coverage | |
| Waiver of Subrogation | |
|
N/A Mutual; will need endorsement Landlord
only; will need endorsement | |
| Comments: | |
| Attachments: | |
Original Lease Original Subordination Agreement | |
I-2
EXHIBIT J
MONTHLY ACCOUNTS CERTIFICATION
| Servicer: |
RE: Series CGCMT 2018-C6
Pursuant to the Servicing Agreement(s) between ▇▇▇▇▇ Fargo Bank, National Association and the above named Primary Servicer, I certify with respect to each transaction serviced by us, as noted above, for ▇▇▇▇▇ Fargo Bank, National Association that as of the last day of the calendar month immediately preceding the month in which this certificate is dated, all collection accounts, loan combination custodial accounts and servicing accounts have been properly reconciled and the reconciliations have been reviewed and approved by Primary Servicer’s management, except as otherwise noted below:
| EXCEPTIONS: | |
| Servicing Officer | Date |
J-1