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PRIMARY SERVICING AGREEMENT
between
NATIONWIDE LIFE INSURANCE COMPANY,
as Primary Servicer,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
Dated as of September 1, 2007
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Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-PWR17
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms....................................................................2
SECTION 1.02. General Interpretive Principles..................................................4
ARTICLE II
CONTRACT FOR PRIMARY SERVICING; DOCUMENTS
SECTION 2.01. Contract for Primary Servicing...................................................5
SECTION 2.02. Possession of Mortgage Loan Documents............................................5
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Primary Servicer to Service......................................................6
SECTION 3.02. Collections......................................................................6
SECTION 3.03. Escrow Funds.....................................................................6
SECTION 3.04. Primary Certificate Account......................................................9
SECTION 3.05. Application of Funds in the Primary Certificate Account.........................11
SECTION 3.06. Certain Additional Servicing Duties.............................................13
SECTION 3.07. Maintenance of Hazard and Other Insurance.......................................13
SECTION 3.08. Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Primary Servicer..............................................15
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause.......................................................15
SECTION 3.10. Servicing Compensation..........................................................18
SECTION 3.11. Primary Servicer Reports; Account Statements....................................19
SECTION 3.12. Exchange Act Reporting and Regulation AB Compliance.............................21
SECTION 3.13. Operating Statement Analysis Reports Regarding the Mortgaged Properties.........21
SECTION 3.14. Inspections.....................................................................21
SECTION 3.15. Modifications, Waivers, Amendments, Extensions and Consents.....................22
SECTION 3.16. Specially Serviced Mortgage Loans...............................................24
SECTION 3.17. Compliance with REMIC Provisions................................................24
SECTION 3.18. Representations, Warranties and Covenants of the Primary Servicer...............24
SECTION 3.19. Merger or Consolidation of the Primary Servicer.................................26
SECTION 3.20. Limitation on Liability of the Primary Servicer and Others......................26
SECTION 3.21. Primary Servicer May Resign.....................................................27
SECTION 3.22. Assignment of Servicing.........................................................27
SECTION 3.23. Indemnification.................................................................28
SECTION 3.24. Assumption or Termination by Trustee............................................28
SECTION 3.25. Purchaser Termination of Agreement..............................................29
SECTION 3.26. Inspection Rights of Master Servicer............................................29
ARTICLE IV
EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS
SECTION 4.01. Exchange Act Reports; Annual Compliance Documents...............................30
ARTICLE V
DEFAULT
SECTION 5.01. Events of Default...............................................................35
SECTION 5.02. Waiver of Defaults..............................................................38
ARTICLE VI
TERMINATION
SECTION 6.01. Termination.....................................................................39
SECTION 6.02. Termination with Cause..........................................................39
SECTION 6.03. Resignation of the Master Servicer..............................................39
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Successor to the Primary Servicer...............................................40
SECTION 7.02. Records.........................................................................40
SECTION 7.03. Notices.........................................................................40
SECTION 7.04. Severability Clause.............................................................41
SECTION 7.05. Counterparts....................................................................41
SECTION 7.06. Governing Law...................................................................41
SECTION 7.07. Protection of Confidential Information..........................................41
SECTION 7.08. Intention of the Parties........................................................41
SECTION 7.09. Beneficiaries...................................................................41
SECTION 7.10. Successors and Assigns; Assignment of Agreement.................................42
SECTION 7.11. Waivers and Amendments..........................................................42
SECTION 7.12. Exhibits........................................................................42
SECTION 7.13. Reproduction of Documents.......................................................42
SECTION 7.14. Further Assurances..............................................................42
EXHIBITS
EXHIBIT A POOLING AND SERVICING AGREEMENT
EXHIBIT B PRIMARY SERVICER'S OFFICER'S CERTIFICATE
EXHIBIT C MORTGAGE LOAN SCHEDULE
EXHIBIT D FORM OF COVER PAGE FOR REPORT OR CERTIFICATION
EXHIBIT E FORM OF QUARTERLY TAX MONITORING REPORT
EXHIBIT F FORM OF QUARTERLY INSURANCE MONITORING REPORT
EXHIBIT G FORM OF QUARTERLY UCC TRACKING REPORT
EXHIBIT H FORM OF INSPECTION REPORT
EXHIBIT I FORM OF CMSA STANDARD REPORTING PACKAGE
EXHIBIT J ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO MASTER SERVICER
EXHIBIT K FORM OF RESERVE ACCOUNT STATUS LIST
EXHIBIT L FORM OF ASSIGNMENT AND ASSUMPTION SUBMISSION
EXHIBIT M FORM OF ADDITIONAL LIEN, MONETARY ENCUMBRANCE AND MEZZANINE
FINANCING SUBMISSION
EXHIBIT N FORM OF SNDA
EXHIBIT O FORM OF RESERVE REPORT
EXHIBIT P FORM OF REMITTANCE REPORT
EXHIBIT Q FEE, TIMING AND CONSENT ADDENDUM
EXHIBIT R [Reserved]
EXHIBIT S FORM OF QUARTERLY SERVICING ACCOUNTS RECONCILIATION
CERTIFICATION
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PRIMARY SERVICING AGREEMENT
This Primary Servicing Agreement (this "Agreement"), is dated and
effective as of September 1, 2007, by and between NATIONWIDE LIFE INSURANCE
COMPANY, an Ohio Corporation having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇-▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and each of its successors and assigns (the "Primary
Servicer"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national banking
association under the laws of the United States having an office at ▇▇▇▇▇ Fargo
Center, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Commercial Mortgage Servicing, and its successors and assigns, as
master servicer (the "Master Servicer").
PRELIMINARY STATEMENT:
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., as depositor
(together with its successors and assigns in such capacity, the "Depositor"),
PRUDENTIAL ASSET RESOURCES, INC., as a master servicer and loan specific special
servicer, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as a master servicer,
CENTERLINE SERVICING, INC., as general special servicer (together with its
successors and assigns in such capacity, the "Special Servicer"), ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, as certificate administrator (together with its
successors and assigns in such capacity, the "Certificate Administrator") and as
tax administrator and LASALLE BANK NATIONAL ASSOCIATION, as trustee (together
with its successors and assigns in such capacity, the "Trustee") have entered
into that certain Pooling and Servicing Agreement, dated as of September 1, 2007
(the "Pooling and Servicing Agreement" or "PSA"), which agreement provides,
among other things, for the servicing and administration of certain multifamily
and commercial mortgage loans on behalf of the Trustee; and
The Master Servicer desires to enter into a contract with the
Primary Servicer whereby the Primary Servicer shall primary service those
mortgage loans (such mortgage loans, the "Mortgage Loans") identified on the
schedule attached hereto as Exhibit C (the "Mortgage Loan Schedule"), on behalf
of the Master Servicer. References herein to the "Mortgage Loans" shall not be
construed to refer to any mortgage loans that are serviced under the Pooling and
Servicing Agreement but are not identified on the Mortgage Loan Schedule.
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; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01. All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
"ABS Issuing Entity" means each trust or entity that has issued
asset-backed securities that directly or indirectly evidence interests in or are
secured by a pledge of one or more mortgage loans serviced hereunder (regardless
of whether such mortgage loan constitutes a "Mortgage Loan" under the other
provisions of this Agreement), it being understood that the trust established
under the Pooling and Servicing Agreement constitutes an ABS Issuing Entity and
that there is no other ABS Issuing Entity for purposes of the Mortgage Loans
primary serviced under this Agreement.
"Agreement" shall have the meaning set forth in the introductory
paragraph hereof.
"Applicable Depositor" means the Depositor under the PWR17
Transaction or the depositor with respect to an ABS Issuing Entity other than
the PWR17 Trust.
"Certificate Administrator" shall have the meaning set forth in the
Preliminary Statement hereof.
"Certificateholders" shall mean the holders of the commercial
mortgage pass-through certificates issued pursuant to the Pooling and Servicing
Agreement.
"Closing Date" shall mean September 27, 2007.
"CMSA Reports" shall mean the Comparative Financial Status Report,
Delinquent Loan Status Report, Servicer Watchlist, Loan Level Reserve Report,
NOI Adjustment Worksheet, Operating Statement Analysis Report, Loan Periodic
Update File, Property File, and Financial File, all as part of the standard
forms developed by the CMSA as they may be updated, modified or expanded from
time to time, the initial forms of which are set forth in Exhibit I attached
hereto, together with such additional CMSA reports as may be adopted by the CMSA
in the future from time to time.
"Depositor" shall have the meaning set forth in the Preliminary
Statement hereof.
"Form 8-K" means Form 8-K under the Exchange Act.
"Form 10-D" means Form 10-D under the Exchange Act.
"Form 10-K" means Form 10-K under the Exchange Act.
"Excess Servicing Fee" means for each calendar month, as to each
Mortgage Loan, an amount calculated as follows: the related Excess Servicing Fee
Rate applicable to such month (determined in the same manner as the applicable
mortgage rate determined for such Mortgage Loan for such month) multiplied by
the scheduled principal balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
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"Excess Servicing Fee Rate": The rate per annum with respect to each
Mortgage Loan as set forth on Exhibit C.
"Event of Default" shall have the meaning set forth in Section 5.01
hereof.
"Master Servicer" shall have the meaning set forth in the
introductory clause hereof.
"Mortgage Loan Schedule" shall have the meaning set forth in the
Preliminary Statement hereof.
"Mortgage Loans" shall have the meaning set forth in the Preliminary
Statement hereof.
"Nondisqualification Opinion" shall mean an Opinion of Counsel to
the effect that a contemplated action or non-action, as the case may be, will
not result in an Adverse REMIC Event or an Adverse Grantor Trust Event.
"Originator" means any person (or group of affiliated persons) that
the Master Servicer notifies the Primary Servicer has, within the meaning of
Item 1110 of Regulation AB, originated, or is expected to originate, 10% or more
of the pool assets of an ABS Issuing Entity.
"Pooling and Servicing Agreement" or "PSA" shall have the meaning
set forth in the Preliminary Statement hereof.
"Primary Certificate Account Statement" shall have the meaning set
forth in clause Section 3.11(b).
"Primary Certificate Account" shall have the meaning set forth in
Section 3.04(a) hereof.
"Primary Servicer Remittance Date" shall have the meaning set forth
in Section 3.05(b) hereof.
"Primary Servicer Determination Date" shall have the meaning set
forth in Section 3.05(b) hereof.
"Primary Servicer Reporting Date" shall have the meaning set forth
in Section 3.05(b) hereof.
"Primary Servicer" shall have the meaning set forth in the
introductory clause hereof.
"Primary Servicing Fee" shall have the meaning set forth in Section
3.10(a) hereof.
"Primary Servicing Fee Rate" shall have the meaning set forth in
Section 3.10(a) hereof.
"PWR17 Transaction" means the transaction to which the Pooling and
Servicing Agreement relates.
"PWR17 Trust" means the ABS Issuing Entity to which the Pooling and
Servicing Agreement relates.
"Rating Agency Confirmation" means, with respect to any action or
proposed action, written confirmation from each Rating Agency to the effect that
such assignment would not result in an Adverse Rating Event with respect to any
Class of Certificates.
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"Regulations" means the rules, regulations and policy statements of
the SEC as in effect from time to time.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to the Primary Servicer, as set forth on Schedule VIII attached to
the Pooling and Servicing Agreement.
"Reports" shall mean those reports expressly required to be
delivered pursuant to this Agreement. Reports shall include: (i) the reports
required to be delivered hereunder in the form attached hereto as Exhibits E, F,
G, H, I, K, L, M, N, O and P, or in any other form otherwise acceptable to the
Master Servicer; (ii) Primary Certificate Account Statements; and (iii)
statements, notices and reports required to be delivered pursuant to Sections
3.05, 3.06, 3.07, 3.08, 3.09, 3.11, 3.13 and 3.14 of this Agreement.
"Significant Obligor for Unrelated Loans" means, with respect to the
PWR17 Transaction, a person that is identified in the Prospectus Supplement as a
"significant obligor" for the ABS Issuing Entity within the meaning of Item
1101(k) of Regulation AB. For the avoidance of doubt, the parties acknowledge
that the Pooling and Servicing Agreement entitles the parties to rely on the
Prospectus Supplement for purposes of identifying a "significant obligor" for
the ABS Issuing Entity and that the Prospectus Supplement does not identify any
Borrower under a Mortgage Loan primary serviced hereunder as a "significant
obligor" for the ABS Issuing Entity.
"Special Servicer" shall have the meaning set forth in the
Preliminary Statement hereof.
"Trustee" shall have the meaning set forth in the Preliminary
Statement hereof.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural
as well as the singular, and the use of any gender herein shall be deemed
to include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP as in effect from time
to time;
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference
to a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto",
"hereby" and other words of similar import refer to this Agreement as a
whole and not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
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ARTICLE II
CONTRACT FOR PRIMARY SERVICING; DOCUMENTS
SECTION 2.01. Contract for Primary Servicing.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Primary Servicer, and the Primary Servicer, by
execution and delivery of this Agreement, does hereby contract with the Master
Servicer, subject to the terms of this Agreement, for the primary servicing of
the Mortgage Loans by the Primary Servicer, such primary servicing to commence
on the Closing Date. Simultaneously with such execution and delivery, the
parties hereby acknowledge the provisions of the Pooling and Servicing
Agreement, a copy of which is attached hereto as Exhibit A, and the Primary
Servicer shall deliver to the Master Servicer an Officer's Certificate of the
Primary Servicer, substantially in the form of Exhibit B hereto, including all
attachments thereto.
SECTION 2.02. Possession of Mortgage Loan Documents.
On and after the Closing Date, the Primary Servicer shall hold such
Mortgage Loan Documents as are in the possession of the Primary Servicer in
trust, on behalf of the Master Servicer for the benefit of the Trustee and the
Certificateholders. The Primary Servicer's possession of any portion of the
Mortgage Loan Documents 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 Mortgage Loan pursuant to this Agreement, and such retention
and possession by the Primary Servicer shall be in a custodial capacity only.
Upon request, the Primary Servicer shall reasonably promptly forward to the
Master Servicer copies of such documents then in the possession of the Primary
Servicer if not part of the Mortgage File forwarded to the Trustee.
Notwithstanding the foregoing, the Primary Servicer shall be entitled to retain
in its possession at all times a photocopy of each of the Mortgage Loan
Documents with respect to the Mortgage Loans. Any portion of the Mortgage Loan
Documents retained by the Primary Servicer shall be identified to reflect
clearly the ownership of the Mortgage Loan by the Trustee, on behalf of the
Certificateholders. The Primary Servicer shall release from its custody any
Mortgage Loan Documents retained by it only in accordance with this Agreement
and the Pooling and Servicing Agreement. For the avoidance of doubt, none of the
foregoing provisions of this Section 2.02 shall limit any obligation the Primary
Servicer may have, in its capacity as Pooled Mortgage Loan Seller, to deliver
the Mortgage Loan Documents related to any Mortgage Loan to the Trustee as
required by the Nationwide Pooled Mortgage Loan Purchase Agreement.
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ARTICLE III
SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. General Provisions.
(a) The Primary Servicer, as an independent contractor, shall
perform its servicing and administrative duties hereunder for and on behalf of
the Trust and for the benefit of the Certificateholders as a collective whole,
in a manner consistent with the Servicing Standard and the requirements,
guidelines, procedures and restrictions imposed upon the Master Servicer under
the relevant sections of the Pooling and Servicing Agreement; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Primary Servicer of the collectability of payments on the
Mortgage Loans or shall be construed to impair or adversely affect any rights or
benefits provided by this Agreement to the Primary Servicer. The addendum
attached hereto as Exhibit Q which addresses certain fee, timing and related
matters (the "Fee, Timing and Consent Addendum") is hereby incorporated by
reference as if fully set forth herein. Any conflict between the provisions of
the main body of this Agreement and the Fee, Timing and Consent Addendum shall
be resolved in favor of the Fee, Timing and Consent Addendum.
(b) Under no circumstance shall the Primary Servicer make or have
an obligation to make any Advances.
(c) The relationship of the Primary Servicer to the Master
Servicer under this Agreement is intended by the parties to be that of an
independent contractor and not of a joint venturer, partner or agent.
SECTION 3.02. Collections.
The Primary Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans). In addition, subject to the
Servicing Standard, the Primary Servicer shall not accept any prepayment of
principal with respect to any Mortgage Loan on any date other than the related
Due Date unless such payment is accompanied by a payment of the interest due
with respect to such Mortgage Loan up to the next succeeding Due Date or unless
such prepayment is permitted under the terms and provisions of the applicable
Mortgage Loans on a date other than a Due Date (other than Specially Serviced
Mortgage Loans). Furthermore, as provided in the Fee, Timing and Consent
Addendum, if a borrower requests a prepayment premium quote from the Primary
Servicer, the Primary Servicer shall forward to the Master Servicer its
calculation of such prepayment amount and the Master Servicer shall confirm such
amount within two (2) Business Days its receipt.
SECTION 3.03. Escrow Funds.
(a) Certain of the Mortgage Loans may provide for payment by the
Borrower to the Primary Servicer of amounts to be used for payment of Escrow
Payments for the account of the Borrower. The Primary Servicer shall deal with
such amounts in accordance with the Servicing Standard, the terms of the
Mortgage Loans and the other subsections of this Section 3.03, and the Primary
Servicer will be entitled to hold any Escrow Accounts relating to the Mortgage
Loans that it services in accordance with the requirements set forth in the
other subsections of this Section 3.03.
(b) On or prior to the Closing Date, the Primary Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, one or more custodial accounts into which funds representing Escrow
Payments received pursuant to any Mortgage Loan are deposited, which
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accounts must be Eligible Accounts, in the name of "Nationwide Life Insurance
Company, as Primary Servicer for ▇▇▇▇▇ Fargo Bank, National Association, as
Master Servicer for LaSalle Bank National Association, as Trustee for the
Holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-PWR17" (each such account, an "Escrow
Account").
(c) On or prior to the date the Primary Servicer shall first
deposit Escrow Payments into an Escrow Account, the Primary Servicer shall give
to the Master Servicer prior written notice of the name and address of the
depository institution at which such Escrow Account is maintained and the
account number of such Escrow Account. The Primary Servicer shall take such
actions as are necessary to cause the depository institution holding the Escrow
Account to hold such account in the name of the Primary Servicer as provided in
Section 3.03(b), subject to the Primary Servicer's right to direct payments and
investments and its rights of withdrawal under this Agreement.
(d) The Primary Servicer shall segregate and hold all Escrow
Payments separate and apart from any of its own funds and general assets and
shall deposit such Escrow Payments into an Escrow Account within one (1)
Business Day after receipt. The Primary Servicer shall also deposit into each
Escrow Account any amounts representing losses on Permitted Investments pursuant
to the immediately succeeding paragraph and any Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds which are required to be applied to the
restoration or repair of any Mortgaged Property pursuant to the related Mortgage
Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made by the Primary Servicer
only for the following purposes:
(i) to effect timely payments of real estate taxes,
assessments, insurance premiums (including, premiums on any Environmental
Insurance Policy), ground rents (if applicable) and comparable items in
respect of the related Mortgaged Property;
(ii) to transfer funds to the Master Servicer's Collection
Account to reimburse the Master Servicer for any Servicing Advance made
thereby with respect to such Mortgage Loan to cover any of the items
described in the immediately preceding clause (i);
(iii) to refund to the related Borrower any sums as may be
determined to be overages;
(iv) to pay interest or other income, if required and as
described under subsection (e), to the related Borrower on balances in the
Escrow Account (or, if and to the extent not payable to the related
Borrower to pay such interest or other income to the Primary Servicer , to
the extent it is entitled thereto under subsection (e);
(v) to disburse Insurance Proceeds if required to be
applied to the repair or restoration of the related Mortgaged Property in
accordance with the related Mortgage Loan and the Servicing Standard;
(vi) to pay from time to time to the related Borrower any
interest or investment income earned on funds deposited in the Escrow
Account if such income is required to be paid to the related Borrower
under applicable law or by the terms of the Mortgage Loan, or otherwise to
the Primary Servicer;
(vii) to withdraw amounts deposited in such Escrow Account
in error; and
(viii) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan.
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(e) Subject to the immediately succeeding sentence, (i) the
Primary Servicer may direct any depository institution or trust company in which
the Escrow Accounts are maintained to invest the funds held therein in one or
more Permitted Investments; provided, however, that such funds shall be either
(x) immediately available or (y) available in accordance with a schedule which
will permit the Primary Servicer to meet the payment obligations for which the
Escrow Account was established; (ii) the Primary Servicer shall be entitled to
all income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Primary Servicer shall deposit from its
own funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Primary Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Borrower to be entitled
to the income and gain realized from the investment of funds deposited therein,
and the Primary Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Permitted Investments or Eligible Accounts to the extent that
the Primary Servicer is required by either law or under the terms of any
Mortgage Loan to deposit or invest (or the Borrower is entitled to direct the
deposit or investment of) such amounts in another type of investments or
accounts. In the event the Primary Servicer is not entitled to direct the
investment of such funds, (1) the Primary Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Borrower's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Primary Servicer to invest such funds in accordance with the
Borrower's directions; and (2) in the absence of appropriate written
instructions from the Borrower, the Primary Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Primary Servicer to meet the payment obligations for which the Escrow Account
was established, and (ii) the Primary Servicer shall have no liability for any
loss in investments of such funds that are invested pursuant to written
instructions from the Borrower.
(f) With respect to each Mortgage Loan, the Primary Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments, ground rents (if applicable) and
other similar items that are or may become a lien on the related Mortgaged
Property and the status of insurance premiums payable with respect thereto. From
time to time, the Primary Servicer shall (i) obtain all bills for the payment of
such items (including renewal premiums), and (ii) except in the case of Mortgage
Loans under which Escrow Payments are not held by the Primary Servicer, effect
payment of all such bills, taxes and other assessments with respect to such
Mortgaged Properties prior to the applicable penalty or termination date, in
each case employing for such purpose Escrow Payments as allowed under the terms
of the related Mortgage Loan; provided that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items
or insurance premiums, the Primary Servicer shall, subject to and in accordance
with the Servicing Standard, use reasonable efforts to enforce the requirement
of the related Mortgage Loan Documents that the related Borrower make payments
in respect of such items at the time they first become due. Any late payment
penalties in connection with any such payment or disbursement to be made on
behalf of a Borrower shall be paid from the Primary Servicer's funds (without
right of reimbursement therefor) and not charged to the Borrower, unless the
late payment was due to the Borrower's error or omission.
(g) With respect to the Mortgage Loans, the Primary Servicer
shall give the Master Servicer ten (10) days prior written notice of the amount
and nature of any necessary payment which must be made for which there are
insufficient funds; provided, however, that, with respect to any payment
required to be made on an urgent or emergency basis such that the Primary
Servicer is unable to provide the Master Servicer with sufficient notice to
enable the Master Servicer to make such payments, the Primary Servicer shall
make such payment. The Primary Servicer shall be reimbursed by Master Servicer
for any such payment within two (2) Business Days of receipt of evidence of
same. Notwithstanding any
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provision contained in this Agreement to the contrary (with the exception of
urgent or emergency payments as set forth above), the Primary Servicer shall not
be responsible for making any Servicing Advances with respect to the Mortgage
Loans.
(h) In connection with such funds and all other funds (if any)
held by or maintained under the control of the Primary Servicer hereunder on
behalf of the Borrowers, the Primary Servicer shall analyze such funds
(according to the related Mortgage Loan Documents) not less frequently than
annually; the Primary Servicer shall pay or credit to the related Borrowers
interest or income on such funds to which they are entitled, all in accordance
with the related Mortgage Loan Documents and applicable state law; and the
Primary Servicer shall return the remainder of such funds to the Borrower within
30 days following the full repayment of the related Mortgage Loan. Any such
payments or disbursements made on behalf of a Borrower shall be posted by the
Primary Servicer to the Borrower records maintained by the Primary Servicer, in
each case within two Business Days after the payment or disbursement.
(i) With respect to each Mortgage Loan that requires the related
Borrower to establish and maintain one or more lock-box, cash management or
similar accounts, the Primary Servicer shall establish and maintain, in
accordance with the Servicing Standard, such account(s) in accordance with the
terms of the related Mortgage Loan Documents. No such lock-box account is
required to be an Eligible Account, unless the Mortgage Loan Documents otherwise
so require. The Primary Servicer shall apply the funds deposited in such
accounts in accordance with terms of the related Mortgage Loan Documents, any
lock-box, cash management or similar agreement and the Servicing Standard.
SECTION 3.04. Primary Certificate Account.
(a) On or prior to the Closing Date, the Primary Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts (such account or accounts,
collectively, the "Primary Certificate Account"), which accounts must be
Eligible Accounts, in the name of "Nationwide Life Insurance Company, as Primary
Servicer for ▇▇▇▇▇ Fargo Bank, National Association, as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-PWR17".
(b) On or prior to the date the Primary Servicer shall first
deposit funds in a Primary Certificate Account, the Primary Servicer shall give
to the Master Servicer prior written notice of the name and address of the
depository institution(s) at which such accounts are maintained and the account
number of such accounts. The Primary Servicer shall take such actions as are
necessary to cause the depository institution holding the Primary Certificate
Account to hold such account in the name of the Primary Servicer as provided in
Section 3.04(a), subject to the Primary Servicer's right to direct payments and
investments and its rights of withdrawal under this Agreement.
(c) The Primary Servicer shall deposit or cause to be deposited in
the Primary Certificate Account, within one Business Day of receipt by or on its
behalf (in the case of payments by Borrowers or other collections on the
Mortgage Loans) or as otherwise required hereunder, the following payments and
collections received or made by or on behalf of the Primary Servicer subsequent
to the Closing Date (other than in respect of scheduled payments of principal
and interest due and payable on such Mortgage Loans on or before their
respective Cut-off Dates, which payments shall be retained by the Primary
Servicer, in its capacity as the related Pooled Mortgage Loan Seller):
(i) Principal: all payments on account of principal,
including Principal Prepayments, the principal component of scheduled
payments, and any Late Collections in respect thereof on the Mortgage
Loans;
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(ii) Interest: all payments on account of interest on the
Mortgage Loans, including Default Interest and excess interest, on the
Mortgage Loans;
(iii) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans;
(iv) Insurance Proceeds: all insurance proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Borrower in
accordance with the Servicing Standard, which proceeds shall be deposited
by the Primary Servicer into an Escrow Account and not deposited in the
Primary Certificate Account;
(v) Condemnation Proceeds: all condemnation proceeds other
than proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Borrower in
accordance with the Servicing Standard, which proceeds shall be deposited
by the Primary Servicer into an Escrow Account and not deposited in the
Primary Certificate Account;
(vi) Investment Losses: any amounts required to be
deposited by the Primary Servicer pursuant to Section 3.04(d) in
connection with losses realized on Permitted Investments with respect to
funds held in the Primary Certificate Account;
(vii) Borrower Reimbursements: insofar as they do not
constitute Escrow Payments, any amounts relating to such Mortgage Loans
paid by a Borrower specifically to cover items for which a Servicing
Advance has been made or that represent a recovery of property protection
expenses or other lender expenses from a Borrower; and
(viii) Other: all other amounts, including late fees,
Prepayment Premiums and Yield Maintenance Charges collected on or in
respect of the Mortgage Loans.
Notwithstanding the foregoing requirements, the Primary Servicer
need not deposit into its Collection Account any amount that the Primary
Servicer would be authorized to withdraw immediately from the Primary
Certificate Account and pay to itself as fees and compensation in accordance
with the terms of Section 3.05(a).
If the Primary Servicer deposits in any Primary Certificate Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Primary Certificate Account, any provision herein to the
contrary notwithstanding.
(d) Funds in the Primary Certificate Account may be invested and,
if invested, shall be invested by, and at the risk of, the Primary Servicer in
Permitted Investments selected by the Primary Servicer which shall mature,
unless payable on demand, not later than the Business Day immediately preceding
the next Primary Servicer Remittance Date, and any such Permitted Investment
shall not be sold or disposed of prior to its maturity unless payable on demand.
All such Permitted Investments shall be made in the name of "Nationwide Life
Insurance Company, as Primary Servicer for ▇▇▇▇▇ Fargo Bank, National
Association, as Master Servicer for LaSalle Bank National Association, as
Trustee for the Holders of the Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-PWR17." None of the
Trustee, the Depositor, the Borrowers or the Master Servicer shall be liable for
any loss incurred on such Permitted Investments.
(e) An amount equal to all income and gain realized from any such
Permitted Investment (to the extent not used to offset losses incurred with
respect to other Permitted Investments) shall be paid to the Primary Servicer as
additional servicing compensation and shall be subject to its
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withdrawal at any time. The amount of any losses incurred with respect to any
such Permitted Investments shall be for the account of the Primary Servicer,
which shall deposit the amount of such loss (to the extent not offset by income
from other Permitted Investments to which the Primary Servicer is otherwise
entitled) in the Primary Certificate Account out of its own funds immediately as
realized.
(f) If amounts on deposit in the Primary Certificate Account are
at any time invested in a Permitted Investment payable on demand, the Primary
Servicer shall: (x) consistent with any notice required to be given thereunder,
demand (or cause to be demanded) that payment thereon be made on the last day
such Permitted Investment may otherwise mature hereunder in an amount at least
equal to the lesser of (1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and (y) demand (or cause to be
demanded) payment of all amounts due thereunder promptly upon any determination
by the Primary Servicer that such investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Primary Certificate
Account.
(g) Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee or the Master Servicer may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings; provided, however, that
if the Primary Servicer shall have deposited in the Primary Certificate Account
an amount equal to all amounts due under any such Permitted Investment (net of
anticipated income or earnings thereon that would have been payable to the
Primary Servicer as additional servicing compensation), the Primary Servicer
shall have the sole right to enforce such payment or performance. Any costs
incurred by the Trustee, the Master Servicer or the Primary Servicer in taking
any enforcement action as described above shall be paid or reimbursed by the
Primary Servicer.
SECTION 3.05. Application of Funds in the Primary Certificate
Account.
(a) The Primary Servicer shall, as described in clause (b) below,
make withdrawals from the Primary Certificate Account of amounts payable from
the Primary Certificate Account of the following amounts, from the amounts
specified for the following purposes:
(i) Primary Servicing Fees and Excess Servicing Fees: to
pay to itself the Primary Servicing Fee and the Excess Servicing Fee;
(ii) Fees: the Primary Servicer shall pay to itself,
pursuant to Section 3.10, any assumption fees, modification fees and
extension fees relating to Mortgage Loans which are not Specially Serviced
Mortgage Loans, all such fees as provided in Section 3.10, and other fees
payable to the Primary Servicer hereunder and not described above;
(iii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such Primary Certificate
Account relating to the Trust to which it is entitled as set forth herein;
(iv) Correction of Errors: to withdraw funds deposited in
the Primary Certificate Account in error;
(v) Certificate Account: to make payment on each Primary
Servicer Remittance Date to the Master Servicer's Collection Account of
the remaining amounts in the Primary Certificate Account; and
(vi) Clear and Terminate: to clear and terminate the
Primary Certificate Account upon the termination of this Agreement.
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(b) The Primary Servicer shall remit to the Master Servicer by
wire transfer of immediately available funds on the seventh day of each month,
or if such seventh day is not a Business Day, the Business Day immediately
following such seventh day, commencing in October 2007 (each, a "Primary
Servicer Remittance Date") all funds that were on deposit in the related Primary
Certificate Account (less any servicing fees and other servicing compensation
that the Primary Servicer is entitled to retain pursuant to this Agreement) as
of the close of business on the preceding Business Day (each, a "Primary
Servicer Determination Date"), and shall deliver to the Master Servicer a
remittance report substantially in the form of Exhibit P attached hereto (the
"Remittance Report"). If any check or other form of payment received by the
Primary Servicer with respect to a Mortgage Loan is returned for insufficient
funds and the Primary Servicer had previously remitted such payment to the
Master Servicer, the Master Servicer shall reimburse the Primary Servicer for
such amount within five (5) Business Days after receipt of notification of such
insufficient funds by the Primary Servicer. All payments in the nature of
Principal Prepayments (and any related interest payments, Prepayment Premiums
and Yield Maintenance Charges) and Balloon Payments shall be remitted to the
Master Servicer within one (1) Business Day of the related Principal Prepayment
or Balloon Payment.
The Primary Servicer shall deliver to the Master Servicer no later
than 5:00 p.m. Eastern Time on the seventh day of each month, or if such seventh
day is not a Business Day, the Business Day immediately following such seventh
day, commencing in October 2007 (each, a "Primary Servicer Reporting Date") the
Remittance Report reflecting all payments received in respect of the Mortgage
Loans from the day after the preceding Primary Servicer Determination Date
through the Primary Servicer Determination Date in the then current month and
shall deliver to the Master Servicer one Business Day following the Primary
Servicer Reporting Date, the CMSA Reports substantially in the form attached
hereto as Exhibit I (as such forms are modified from time to time by the CMSA or
its successor), with respect to the Primary Servicer's Mortgage Loans.
In addition:
(1) in the case of any Monthly Payment (other than a Balloon
Payment) received on a Primary Servicer Determination Date for a Collection
Period, the Primary Servicer shall (i) provide Master Servicer with immediate
notice of Primary Servicer's receipt of such payment and (ii) shall use its
reasonable best efforts to remit such payment to Master Servicer on the date of
receipt and, in any event, shall remit such payment to Master Servicer within
one Business Day following receipt and the Primary Servicer shall cause any
sub-servicer to remit to the Primary Servicer any such payments received by such
sub-servicer within three (3) Business Days of receipt;
(2) the Primary Servicer shall in any event provide Master
Servicer with immediate notice of Primary Servicer becoming aware that any
Principal Prepayment is to be made on a Determination Date;
(3) in the case of any Monthly Payment that is either due during a
Collection Period or due after a Collection Period but on or before a
Distribution Date and (in either case) is received after the end of such
Collection Period, the Primary Servicer shall use its reasonable efforts to
remit such payment to Master Servicer on the date of receipt and in any event
shall remit such payment to Master Servicer within one Business Day following
receipt;
(4) the Primary Servicer shall use its reasonable best efforts to
remit to Master Servicer on the date of receipt of, and in any event shall remit
to Master Servicer within one Business Day following receipt of, any unscheduled
payments or Balloon Payments that would result in a Prepayment Interest
Shortfall; and
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(5) except as provided in paragraph (3) above, any Monthly Payment
received and collected during a Collection Period, but due on a Due Date
occurring after the end of such Collection Period, shall be remitted on the
Primary Servicer Remittance Date for the Collection Period in which such Due
Date occurs.
SECTION 3.06. Certain Additional Servicing Duties.
(a) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Primary Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Primary Servicer
shall notify the Master Servicer to such effect, and the Primary Servicer, after
consultation with the Master Servicer, shall take reasonable actions in
accordance with the Servicing Standard and the terms and conditions of such
Environmental Insurance Policy to make a claim thereunder and achieve the
payment of all amounts to which the Trust is entitled thereunder. Any legal fees
or other out-of-pocket costs incurred in accordance with the Servicing Standard
in connection with any such claim shall be reimbursed by Master Servicer within
five (5) Business Days upon receipt of evidence of any such costs.
(b) In connection with any extension of the Maturity Date of a
Mortgage Loan, the Primary Servicer shall give prompt written notice of such
extension to the insurer under the Environmental Insurance Policy and shall
execute such documents as are reasonably required by such insurer to procure an
extension of such policy (if available). The Primary Servicer shall provide
copies of such notice and documents to the Master Servicer.
(c) The Primary Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a Ground Lease, in
accordance with the related Mortgage Loan Documents, promptly (and, in any
event, within 45 days) after the Closing Date notify the related ground lessor
of the transfer of such Mortgage Loan to the Trust pursuant to the Nationwide
Pooled Mortgage Loan Agreement and the Pooling and Servicing Agreement and
directing such ground lessor to forward to the Master Servicer any notices of
default under the related Ground Lease. The Primary Servicer shall deliver or
cause to be delivered to the Master Service of a copy of the notice and
direction required above, as evidence of the Primary Servicer's compliance with
this subsection.
SECTION 3.07. Maintenance of Hazard and Other Insurance.
(a) Subject to the limitations set forth below, the Primary
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Borrower to maintain (including identifying the extent to
which a Borrower is maintaining insurance coverage and, if such Borrower does
not so maintain, the Primary Servicer will itself cause to be maintained with
Qualified Insurers having the Required Claims-Paying Ratings) for the related
Mortgaged Property (x) a fire and casualty extended coverage insurance policy,
which does not provide for reduction due to depreciation, in an amount that is
at least equal to the lesser of (i) the full replacement cost of improvements
securing such Mortgage Loan or (ii) the outstanding principal balance of such
Mortgage Loan, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause and (y) all other insurance coverage
(including but not limited to coverage for damage resulting from acts of
terrorism) as is required or that the lender is entitled to reasonably require,
subject to applicable law, under the related Mortgage Loan Documents; provided
that the Primary Servicer shall not be required to maintain any earthquake or
environmental insurance policy on any Mortgaged Property securing a Mortgage
Loan unless such insurance policy was in effect at the time of the origination
of such Mortgage Loan pursuant to the terms of the related Mortgage Loan
Documents and is available at commercially reasonable rates. In addition, if and
to the extent that any Mortgage Loan grants the lender thereunder any discretion
(by way of consent, approval or otherwise) as to the insurance provider from
whom the related Borrower is to obtain
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the requisite insurance coverage, the Primary Servicer shall (to the extent
consistent with the Servicing Standard) require the related Borrower to obtain
the requisite insurance coverage from Qualified Insurers that, in each case,
have the Required Claims-Paying Ratings at the time such insurance coverage is
obtained.
(b) In no event shall the Primary Servicer be required to cause
the Borrower under any Mortgage Loan to maintain, or itself obtain, insurance
coverage that the Primary Servicer has determined is either (i) not available at
any rate or (ii) not available at commercially reasonable rates and the related
hazards are not at the time commonly insured against for properties similar to
the related mortgaged property and located in or around the region in which the
related Mortgaged Property is located (in each case, as determined by the
applicable Primary Servicer, which shall be entitled to rely, at its own
expense, on insurance consultants in making such determination) (and provided
that any such determinations by the applicable Master Servicer must be made not
less frequently (but need not be made more frequently) than annually but in any
event shall be made at the approximate date on which the applicable Master
Servicer receives notice of the renewal, replacement or cancellation of
coverage). For any Mortgage Loan with a Stated Principal Balance in excess of
$2,500,000, the Primary Servicer shall obtain the approval or disapproval of the
Special Servicer in accordance with Section 3.07(a) of the Pooling and Servicing
Agreement before making the determination as described in this Section 3.07(b).
The Primary Servicer shall be entitled to rely on the determination of the
Special Servicer made in connection with such approval or disapproval. In
addition, the Primary Servicer shall have no obligation beyond using its
reasonable efforts consistent with the Servicing Standard to cause the Borrower
under any Mortgage Loan to maintain the insurance required to be maintained or
that the lender is entitled to reasonably require, subject to applicable law,
under the related Mortgage Loan Documents. Furthermore, the Primary Servicer
shall not be required in any event to maintain or obtain insurance coverage to
the extent the Trustee as mortgagee does not have an insurable interest. The
Primary Servicer shall notify the Master Servicer in the event it makes such
determination.
(c) The Primary Servicer shall notify the Master Servicer if the
Primary Servicer determines that the Borrower under any Mortgage Loan has failed
to maintain insurance required under (or that the Primary Servicer has required
pursuant to a provision that entitles the lender to reasonably require insurance
under) the related Mortgage Loan Documents and such failure materially and
adversely affects such Mortgage Loan and/or the interest of the Trust in the
related Mortgaged Property or if the Borrower under any Mortgage Loan has
notified the Primary Servicer in writing that the Borrower does not intend to
maintain such insurance.
(d) All such insurance policies maintained as described above
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the applicable Master Servicer on behalf of the
Trustee, in the case of insurance maintained in respect of a Serviced Mortgage
Loan, or shall name the Trustee as the insured, with loss payable to the
applicable Special Servicer on behalf of the Trustee, in the case of insurance
maintained in respect of an Administered REO Property. Any amounts collected by
a Master Servicer or a Special Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Borrower, in
each case in accordance with the Servicing Standard) shall be deposited in the
Primary Certificate Account, subject to withdrawal pursuant to Section 3.05. Any
cost (such as insurance premiums and insurance broker fees but not internal
costs and expenses of obtaining such insurance) incurred by the Primary Servicer
in maintaining any such insurance shall not, for purposes hereof be added to
unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of the Primary
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan. Such costs of maintaining insurance shall be
paid by the Primary Servicer and reimbursed by Master Servicer to the Primary
Servicer within two (2) Business Days upon receipt of evidence of any such
costs.
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SECTION 3.08. Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Primary Servicer.
The Primary Servicer, at its expense, shall at all times during the
term of this Agreement keep in force with a Qualified Insurer having the
Required Claims-Paying Ratings (unless the Primary Servicer self insures as
provided below), a fidelity bond and a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder. Such bond and such errors
and omissions policy shall each be in such form and amount as are consistent
with the Servicing Standard, include the Master Servicer as loss payee and
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of the Primary
Servicer are rated not lower than "A" by Fitch and "A" by S&P, the Primary
Servicer may self-insure with respect to the fidelity bond and/or errors and
omissions coverage required as described above, in which case it shall not be
required to maintain an insurance policy with respect to such coverage. The
Primary Servicer shall deliver to the Master Servicer on an annual basis a
certificate of insurance evidencing its fidelity bond and errors and omissions
coverage as required by this section.
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause.
(a) General Acknowledgements. The parties acknowledge the
provisions of Section 3.08 of the Pooling and Servicing Agreement and the
provisions of the Fee, Timing and Consent Addendum.
(b) Expressly-Permitted Assignments and Assumptions. In the event
the Primary Servicer receives a request from a Borrower pursuant to the
provisions of any Mortgage Loan (other than a Specially Serviced Mortgage Loan)
that expressly permits, subject to any conditions set forth in the Mortgage Loan
Documents, for the assignment of the related Mortgaged Property to, and
assumption of such Mortgage Loan by, another Person, the Primary Servicer shall
obtain relevant information for purposes of evaluating such request and no
Master Servicer or Special Servicer shall have an obligation to review or
consent to such request. For the purpose of the foregoing sentence, the term
"expressly permits" shall mean that the Mortgage Loan Documents grant to the
Borrower the outright permission to assign the Mortgaged Property to and cause
the assumption of the Mortgage Loan by another Person if the conditions to the
transaction that are set forth in the related Mortgage Loan Documents do not
include the approval of the lender or the exercise of lender discretion (other
than confirming the satisfaction of the other conditions to the transaction set
forth in the related Mortgage Loan Documents that do not include any other
approval or exercise). In no event shall the Primary Servicer approve any
request for approval of an such assignment and assumption unless such approval
is consistent with the Servicing Standard and the additional conditions set
forth in subsection (d) are satisfied. Following any such approval, the Primary
Servicer shall comply with the processing and notice provisions of subsection
(i).
(c) Other Assignments and Assumptions. Other than with respect to
the assignment and assumptions referred to in subsection (b) above, if any
Mortgage Loan (other than a Specially Serviced Mortgage Loan) contains a
provision in the nature of a "due-on-sale" clause, which by its terms (i)
provides that such Mortgage Loan shall (or may at the mortgagee's option) become
due and payable upon the sale of the related Mortgaged Property, or (ii)
provides that such Mortgage Loan may not be assumed without the consent of the
related mortgagee in connection with any such sale or other transfer or upon the
satisfaction of conditions, then, in connection with any such sale or
assumption, the Primary Servicer shall obtain the relevant information for
purposes of evaluating such sale or assumption and shall provide to the Master
Servicer and the Special Servicer a copy of its recommendation with respect to
such matter and the materials upon which such recommendation is based (which
information shall consist of the information to be included in the Assignment
and Assumption Submission to the Special Servicer, in
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the form attached hereto as Exhibit L). The Primary Servicer shall not consent
to such sale or assumption unless it obtains the consent or deemed consent of
the Special Servicer as provided in Section 3.08(a)(A) of the Pooling and
Servicing Agreement. In no event shall the Primary Servicer approve any such
request for approval of an such assignment and assumption unless such approval
is consistent with the Servicing Standard and the additional conditions set
forth in subsection (d) are satisfied. Following any such approval, the Primary
Servicer shall comply with the processing and notice provisions of subsection
(i).
(d) Additional Requirements for Assignments and Assumptions. In
addition to other conditions set forth in subsection (b) and subsection (c)
above, if the affected Mortgage Loan is a Pooled Mortgage Loan that (together
with all other Pooled Mortgage Loans, if any, that are in the same
Cross-Collateralized Group as such Pooled Mortgage Loan or have the same
Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be
affiliated with the Borrower under such Pooled Mortgage Loan) is one of the ten
largest Pooled Mortgage Loans then in the Trust or has a Cut-off Date Principal
Balance in excess of $20,000,000, then, subject to the related Mortgage Loan
Documents and applicable law, the Primary Servicer shall not enter into an
assignment and assumption unless and until it has received written confirmation
from each Rating Agency that such action would not result in an Adverse Rating
Event with respect to any Class of Certificates.
(e) Secondary Financing. If the provisions of any Mortgage Loan
(other than a Specially Serviced Mortgage Loan) permits the further encumbrance
of the related Mortgaged Property upon the satisfaction of specified conditions,
prohibits such a further encumbrance except upon the satisfaction of specified
conditions or fully prohibits such a further encumbrance, or provides that such
Mortgage Loan will (or, at the mortgagee's option, may) become due upon a
further encumbrance of the Mortgaged Property, and the related Borrower requests
approval for such a further encumbrance or enters into a further encumbrance in
violation of the related Mortgage Loan Documents, the Primary Servicer shall
obtain the relevant information and review and make a determination the Primary
Servicer shall promptly obtain relevant information for purposes of evaluating
any related waiver or consent. The Primary Servicer shall provide to the Master
Servicer and the Special Servicer a copy of its recommendation with respect to
such matter and the materials upon which such recommendation is based (which
information shall consist of the information to be included in the Additional
Lien, Monetary Encumbrance and Mezzanine Financing Submission Package to the
Master Servicer, in the form attached hereto as Exhibit M). The Primary Servicer
shall not consent to such further encumbrance unless it obtains the consent or
deemed consent of the Master Servicer (if the Special Servicer's consent is not
required under the PSA) or the consent or deemed consent of the Special Servicer
(if the Special Servicer's consent is required under the PSA). In no event shall
the Primary Servicer approve any request for approval of further encumbrance
unless such approval is consistent with the Servicing Standard and the
additional conditions set forth in subsection (f) are satisfied. Following the
consummation of any such approval, the Primary Servicer shall comply with the
processing and notice provisions of subsection (i).
(f) Additional Requirements for Secondary Financing. In addition
to other conditions set forth in subsection (e), if the affected Mortgage Loan
is a Pooled Mortgage Loan that (a) represents 2% or more of the then aggregate
principal balance of all of the Pooled Mortgage Loans then in the Trust Fund,
(b) is one of the ten largest Pooled Mortgage Loans then in the Trust Fund by
principal balance, (c) has an aggregate loan-to-value ratio (including existing
and proposed additional debt) that is equal to or greater than 85% or (d) has an
aggregate debt service coverage ratio (including the debt service on the
existing and proposed additional debt) that is less than 1.2x, then, subject to
the related Mortgage Loan Documents and applicable law, the Primary Servicer
shall not approve a further encumbrance unless and until it has received written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Certificates.
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(g) Transfers of Interests. The Primary Servicer shall have the
right to consent to any transfers of an interest of a Borrower to the extent
such transfer is allowed under the terms of the related Mortgage Loan, including
any consent to transfer to any subsidiary or Affiliate of the Borrower, to a
Person acquiring less than a majority interest in the Borrower or to an entity
of which the Borrower is the controlling beneficial owner. In no event shall the
Primary Servicer approve any request for approval of a Borrower interest unless
such approval is consistent with the Servicing Standard and the additional
conditions set forth in subsection (h) are satisfied. Following the consummation
of any such approval, the Primary Servicer shall comply with the processing and
notice provisions of subsection (i).
(h) Additional Requirements for Transfers of Borrower Interests.
In addition to other conditions set forth in subsection (g), if (i) the affected
Mortgage Loan is a Pooled Mortgage Loan that, together with all other Pooled
Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such
Pooled Mortgage Loan or have the same Borrower as such Pooled Mortgage Loan or
have Borrowers that are known to be affiliated with the Borrower under such
Pooled Mortgage Loan, has a Stated Principal Balance that equals or exceeds 5%
of the then aggregate Stated Principal Balance of the Mortgage Pool or is one of
the then current top ten Pooled Mortgage Loans (by Stated Principal Balance) in
the Mortgage Pool or has a Cut-off Date Principal Balance in excess of
$20,000,000, and (ii) the transfer is of an interest in the Borrower greater
than 49%, then the applicable Master Servicer shall not consent to such transfer
unless and until it has received written confirmation from each Rating Agency
that such action would not result in an Adverse Rating Event with respect to any
Class of Certificates, the costs of which to be payable by the related Borrower
to the extent provided for in the Mortgage Loan Documents.
(i) Processing and Notices. Upon the satisfaction of the
conditions to approval of any proposed assignment and assumption, further
encumbrance or transfer of Borrower interest set forth above, the Primary
Servicer shall process the request of the related Borrower and shall be
authorized to enter into one or more instruments to effect such transaction. The
Primary Servicer shall notify the Master Servicer, the Trustee, the Certificate
Administrator and the Special Servicer of any such transaction entered into
pursuant to this Section 3.09. Any related fees collected from a Borrower in
connection with any such transaction executed pursuant to this Section 3.09
shall be allocated and payable to the Persons and in the amounts provided in
Section 3.10.
(j) Direct Contact With Special Servicer. The Primary Servicer
shall be entitled to contact the Special Servicer directly in regard to any
Borrower request contemplated by this Section 3.09 if the Special Servicer is
entitled to grant or withhold consent to such request under the terms of the
Pooling and Servicing Agreement.
(k) Not Applicable to Specially Serviced Mortgage Loans.
Notwithstanding any provision of this Agreement to the contrary, in connection
with any Mortgage Loan that constitutes a Specially Serviced Mortgage Loan, the
Primary Servicer shall not have the authority to enter into, or the duty to make
a recommendation with respect to, any waiver or consent otherwise described in
the foregoing provisions of this Section 3.09.
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(l) Regarding Seller's Representation. The parties hereto
acknowledge that, if the representation set forth in the final sentence of
paragraph 23 or the final sentence of paragraph 29 of Exhibit C to the
Nationwide Pooled Mortgage Loan Purchase Agreement regarding the obligation of a
Borrower to pay the reasonable costs and expenses of obtaining any Rating Agency
Confirmation in connection with an assumption or defeasance of the related
Mortgage Loan is breached because the related Mortgage Loan Documents do not
require the Borrower to pay costs related thereto, then it shall be the sole
obligation of the related Pooled Mortgage Loan Seller to pay an amount equal to
such insufficiency to the extent the related Borrower is not required to pay
such amount. The Primary Servicer may not waive such payment by the Borrower or
Pooled Mortgage Loan Seller, as the case may be.
SECTION 3.10. Servicing Compensation.
(a) As compensation for its activities hereunder with respect to
the Mortgage Loans, the Primary Servicer shall be entitled to receive a primary
servicing fee with respect to each Mortgage Loan (the "Primary Servicing Fee").
As to each Mortgage Loan, the Primary Servicing Fee shall accrue from time to
time at the rate per annum as specified in Exhibit C hereof (the "Primary
Servicing Fee Rate") and shall be computed on the basis of the Scheduled
Principal Balance of such Mortgage Loan and for the same period respecting which
any related interest payment due (or deemed to be due) on such Mortgage Loan is
computed. The Primary Servicing Fee shall be payable monthly, on a loan-by-loan
basis. With respect to the Mortgage Loans, the Primary Servicer shall be
entitled to pay itself the Primary Servicing Fee from actual collections on the
respective Mortgage Loans.
(b) The Primary Servicer shall retain all rights to the Excess
Servicing Fee for the Mortgage Loans, even if (a) any Mortgage Loan or Mortgage
Loans become Specially Serviced Mortgage Loans; (b) the Primary Servicer's
servicing is terminated with respect to particular Mortgage Loans or (c) the
Primary Servicer is in default, is terminated or resigns under this Agreement.
If the Primary Servicer is unable to deduct the Excess Servicing Fee because it
no longer services a Mortgage Loan or Mortgage Loans or for any other reason
(other than transfer or assignment of the rights to the Excess Servicing Fee),
then the Master Servicer (and any successor) shall cause the Excess Servicing
Fee to be paid on the Mortgage Loans to the Primary Servicer, to the extent of
any amounts received by the Master Servicer.
(c) The Primary Servicer shall be entitled to receive as
additional primary servicing compensation ("Additional Primary Servicing
Compensation"), the percentage specified below of the income, fee or charge
described below, in each case only to the extent that such income, fee or charge
is actually collected by the Primary Servicer from the Borrower or earned and
paid on any account:
(i) 100% of the earnings on the earnings on the Escrow
Accounts (to the extent that the Primary Servicer is entitled thereto
under Section 3.03(e)), the Primary Certificate Account (to the extent
that the Primary Servicer is entitled thereto under Section 3.04(e)) and,
subject to the related Mortgage Loan Documents and applicable law, any
other accounts held by the Primary Servicer hereunder.
(ii) 50% of any fee associated with a Borrower request
including but not limited to loan assumptions, modifications, waivers,
consents and extensions relating to transactions not requiring Special
Servicer consent pursuant to the PSA.
(iii) 25% of any fee associated with a Borrower request
(other than the non-refundable processing fee relating to assumptions and
transfers) including but not limited to loan assumptions, modifications,
waivers, consents and extensions relating to transactions requiring
Special Servicer consent pursuant to the PSA.
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In addition, the Primary Servicer shall be entitled to any
Borrower-paid administration fees associated with any Escrow Account maintained
by the Primary Servicer. The Primary Servicer shall also be entitled to that
portion of any late charges collected from or on behalf of any Borrower that
remains after application to any advance interest due to the Trust, on a
"loan-by-loan" basis, in the manner set forth in clause first and clause second
of Section 3.26(a) of the PSA, other than the portion thereof (if any) to which
the Special Servicer is entitled as set forth in clause third of Section 3.26(a)
of the PSA.
With respect to the Mortgage Loans, the Primary Servicer shall not
be entitled to Additional Primary Servicing Compensation in respect of interest
or other income on deposits in any account that is not maintained by the Primary
Servicer. The Primary Servicer shall not be entitled to any default interest,
prepayment premiums, yield maintenance charges or additional interest, including
excess interest collected on any Mortgage Loan.
Any fees, charges or miscellaneous collections not specified as
payable to the Primary Servicer above are payable to the Master Servicer.
(d) Notwithstanding the preceding provisions of this Section 3.10,
the Primary Servicer shall not be entitled to any Additional Primary Servicing
Compensation with respect to any Mortgage Loan that has become a Specially
Serviced Mortgage Loan (other than interest and investment income earned on
funds in accounts maintained by the Primary Servicer) or with respect to which
the Primary Servicer has been terminated as Primary Servicer hereunder;
provided, however, the Primary Servicer shall be entitled to the Excess
Servicing Fee. The Primary Servicer shall be required to pay out of its own
funds, without reimbursement therefor, all overhead and general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, including costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses.
(e) The fee, timing and consent addendum hereto as Exhibit Q (the
"Fee, Timing and Consent Addendum") is hereby incorporated by reference as if
fully set forth herein. Any conflict between the provisions of this Agreement
and the Fee, Timing and Consent Addendum shall be resolved in favor of the Fee,
Timing and Consent Addendum.
(f) The Primary Servicer shall be entitled to withdraw from the
Primary Certificate Account and pay to itself the Primary Servicing Fee, the
Excess Servicing Fee and Additional Primary Servicing Compensation on the
related Primary Servicer Remittance Date but only from the sources of funds from
which such payment may be made as specified hereunder and the Pooling and
Servicing Agreement.
SECTION 3.11. Primary Servicer Reports; Account Statements.
(a) For each Primary Servicer Reporting Date, the Primary Servicer
shall deliver to the Master Servicer, no later than 2:00 p.m., New York City
time, on the related Primary Servicer Reporting Date, the Remittance Report with
respect to such Primary Servicer Reporting Date including any information
regarding payoffs and prepayments made pursuant to Section 3.05(b) above. The
Primary Servicer shall also be required to provide a Remittance Report within
one (1) Business Day of a remittance of a Principal Prepayment or Balloon
Payment pursuant to Section 3.05(b). Any payments or information received by the
Primary Servicer with respect to a Specially Serviced Mortgage Loan shall be
forwarded promptly to the Master Servicer.
(b) The Primary Servicer shall give notice to the Master Servicer
of the location of the Primary Certificate Account as of the Closing Date and
notice to the Master Servicer and the other
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parties to the Pooling and Servicing Agreement of the new location of its
Collection Account prior to any change thereof. The Primary Servicer shall
execute and deliver to the Master Servicer a certification substantially in the
form set forth in Exhibit S hereto no later than no later than 5:00 p.m. Eastern
Time on the 25th calendar day of each January, April, July and October,
commencing in October 2007 (the date of such delivery, in each case, a
"Reconciliation Certification Date"), with respect to the three consecutive
calendar months immediately preceding the calendar month in which such
Reconciliation Certification Date falls.
(c) The Primary Servicer shall deliver or cause to be delivered to
the Master Servicer the following CMSA Reports (or in any other form as provided
to the Primary Servicer) with respect to the Mortgage Loans providing the
required information as of the related Primary Servicer Determination Date upon
the following schedule: (i) a Comparative Financial Status Report not later than
no later than 5:00 p.m. Eastern Time one Business Day after each Primary
Servicer Reporting Date, commencing in October 2007; (ii) an Operating Statement
Analysis Report, the Financial File and an NOI Adjustment Worksheet in
accordance with Section 3.13 of this Agreement; (iii) a Servicer Watch List in
accordance with and subject to the terms of Section 3.11(d) below, no later than
5:00 p.m. Eastern Time on each Primary Servicer Reporting Date, commencing in
October 2007; (iv) a Loan Periodic Update File not later than 5:00 p.m. Eastern
Time one Business Day after each Primary Servicer Reporting Date, commencing in
October 2007; (vi) a Property File not later than 5:00 p.m. Eastern Time one
Business Day after each Primary Servicer Reporting Date, commencing in October
2007; (vii) a Delinquent Loan Status Report not later than one Business Day
after each Primary Servicer Reporting Date (commencing in October 2007) and
(viii) a Loan Level Reserve Report not later than 5:00 p.m. Eastern Time one
Business Day after each Primary Servicer Reporting Date (commencing in October
2007).
(d) For each Distribution Date, the Primary Servicer shall deliver
to the Master Servicer(and solely with respect to a Serviced Loan Pair, the
holder of the related Serviced Non-Pooled Mortgage Loan), not later than the
Primary Servicer Reporting Date, a Servicer Watch List.
(e) To the extent that the Master Servicer is required to deliver
additional information under the Pooling and Servicing Agreement relating to the
matters that are within the servicing responsibilities of the Primary Servicer
hereunder, the Primary Servicer shall use reasonable efforts consistent with the
Servicing Standard to supply such additional information to the Master Servicer.
(f) The Primary Servicer shall prepare reports on the status of
real estate taxes, the status of insurance and the status of UCC financing
statements for the Mortgage Loans in the forms and setting forth the information
as more particularly described and set forth on Exhibits E, F and G,
respectively, in each January, April, July and October of each year and deliver
such reports to the Master Servicer not later than one Business Day following
the Primary Servicer Reporting Date.
(g) The Primary Servicer shall promptly notify the Master Servicer
of any significant events which become known to Primary Servicer affecting the
Mortgage Loans, the related Borrower or related Mortgaged Property, such as a
payment default, a bankruptcy, a judicial lien or casualty event, and the
Primary Servicer shall also promptly advise the Master Servicer of all material
collection and customer service issues and, if requested, shall furnish the
Master Servicer with copies of any correspondence or other documents in the
possession of the Primary Servicer related to any such matter. If litigation is
instituted with respect to a Mortgage Loan, the Primary Servicer, if aware of
such litigation, shall notify the Master Servicer immediately as to the status
of the litigation related to such Mortgage Loan and shall, when reasonably
required or requested by the Master Servicer, provide to the Master Servicer
copies of all pertinent information in the Primary Servicer's possession related
to such litigation, including, without limitation, copies of related servicing
documents.
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SECTION 3.12. Exchange Act Reporting and Regulation AB
Compliance.
The Primary Servicer shall comply with all applicable terms and
conditions of Article XI of the Pooling and Servicing Agreement.
SECTION 3.13. Operating Statement Analysis Reports Regarding
the Mortgaged Properties.
The Primary Servicer, at its own expense and at all times prior to a
Mortgage Loan becoming a Specially Serviced Mortgage Loan, shall (a) within 90
days after the end of each of the first three calendar quarters (in each year)
for the trailing 12 months, quarterly or year to date information received,
commencing, with respect to the quarter ending on September 30, 2007 (or, solely
in the case of Mortgage Loans have their first Due Dates after September 2007,
commencing with respect to the calendar quarter ending on December 30, 2007)
(that is, initial reports shall not be due in September 2007 but shall reflect
financial information that relates to the trailing 12 months, quarterly or year
to date information as of September 30, 2007), deliver to the Master Servicer an
Operating Statement Analysis Report and a Financial File for each Mortgaged
Property in electronic format, prepared using the quarterly, year-to-date or
trailing 12-month operating statements and rent rolls received from the related
Borrower, if any, and (b) not later than 5:00 p.m. Eastern Time on the 15th of
May of each year, beginning in 2008 for year-end 2007, deliver to the Master
Servicer, an Operating Statement Analysis Report, a Financial File and an NOI
Adjustment Worksheet for each Mortgage Loan in electronic format, based on the
most recently available year end financial statements and most recently
available rent rolls of each applicable Borrower (to the extent provided to the
Primary Servicer by or on behalf of each Borrower). As and to the extent
reasonably requested by the Special Servicer to the Master Servicer, the Primary
Servicer shall make inquiry of any Borrower with respect to such information or
as regards the performance of the related Mortgaged Property in general. The
related rent rolls, operating statements, financial statements collected with
respect to the Mortgaged Properties shall be delivered by the Primary Servicer
to the Master Servicer within 25 days following receipt thereof. The items
described in clause (a) and clause (b) above shall be prepared using normalized
financial statements and rent rolls. In addition, to the extent that the Primary
Servicer receives any annual financial statements for the year-ended December
31, 2006, the Primary Servicer shall forward copies of such financial statements
to the Controlling Class Representative.
SECTION 3.14. Inspections.
The Primary Servicer shall, at its own expense, inspect or cause to
be inspected each Mortgaged Property other than Mortgaged Properties related to
Specially Serviced Mortgage Loans, every calendar year beginning in 2008, or
every second calendar year beginning in 2008 if the Principal Balance of the
related Mortgage Loan is under $2,000,000; provided that with respect to any
Mortgage Loan (other than a Specially Serviced Mortgage Loan) has been placed on
the Servicer Watchlist, the Primary Servicer, at its own expense, shall, at the
request of the Controlling Class Representative, inspect or cause to be
inspected the related Mortgaged Property every calendar year beginning in 2008
so long as such Mortgage Loan continues to be on the CMSA Servicer Watch List;
and provided, further, that Primary Servicer will not be obligated to inspect
any particular Mortgaged Property during any one-year or two-year, as
applicable, period contemplated above in this sentence, if the Special Servicer
has already done so during that period pursuant to the Pooling and Servicing
Agreement. The Primary Servicer shall cause to be prepared an Inspection Report,
in the form set forth in Exhibit H attached hereto, relating to each inspection.
The Primary Servicer shall forward three (3) copies of the applicable Inspection
Report to the Master Servicer within twenty-five (25) days of the related
inspection. After a Mortgage Loan becomes a Specially Serviced Mortgage Loan,
the Primary Servicer will have no obligations under this Section. However, once
a Specially Serviced Mortgage Loan is rehabilitated and becomes a Corrected
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Mortgage Loan, the provisions of this Section 3.14 shall once again apply to the
Primary Servicer with respect to such Corrected Mortgage Loan.
SECTION 3.15. Modifications, Waivers, Amendments, Extensions
and Consents.
(a) General Acknowledgements. The parties acknowledge the
provisions of Section 3.20 of the Pooling and Servicing Agreement and the
provisions of the Fee, Timing and Consent Addendum.
(b) Authorizations. The Primary Servicer shall be authorized to
enter into approvals of (A) new leases, (B) subordination and nondisturbance
agreements, (C) partial releases of real estate collateral, (D) grants of
easements, (E) condemnation proceedings and related releases of collateral, (F)
releases of funds from a reserve, (G) approvals of payoff amounts, and/or (H)
releases of letters of credit; provided, however, that:
(i) if this Agreement (including the Fee, Timing and
Consent Addendum) expressly authorizes the Primary Servicer to enter into
such approval without the consent of the Master Servicer or the Special
Servicer, then (A) the Primary Servicer shall have determined that such
approval is consistent with the Servicing Standard and (B) the Primary
Servicer shall have satisfied the provisions of subsection (c); and
(ii) if this Agreement (including the Fee, Timing and
Consent Addendum) does not expressly authorize the Primary Servicer to
enter into such approval without the consent of the Master Servicer or the
Special Servicer, then: (A) the Primary Servicer shall have promptly
provided to the Master Servicer or (but only if the Special Servicer's
consent or deemed consent would be required under the Pooling and
Servicing Agreement) to the Special Servicer a notice of the Borrower's
request for such approval, the Primary Servicer's recommendations and
analysis and all information reasonably available to the Primary Servicer
that the Master Servicer or the Special Servicer, as applicable, may
reasonably request; (B) the Primary Servicer shall have obtained the
consent or deemed consent of the Master Servicer or the Special Servicer,
as contemplated by the Fee, Timing and Consent Addendum and (solely in the
case of the Special Servicer) by Section 3.20(a)(i) of the Pooling and
Servicing Agreement; and (C) the Primary Servicer shall have satisfied the
provisions of subsection (c).
(c) Additional Requirements. In addition to other conditions set
forth in subsection (c) and/or subsection (d), the Primary Servicer shall not
enter into any modification, waiver, amendment or consent with respect to a
Mortgage Loan or any instrument of satisfaction or cancellation, or of full
release or discharge with respect to any Mortgage Loan, unless the Primary
Servicer complies with the following provisions:
(i) Fees and Expenses. Subject to applicable law, the
related Mortgage Loan Documents and the Servicing Standard, the Primary
Servicer shall not enter into any modification, waiver or amendment of any
term of any Mortgage Loan unless all related fees and expenses are paid by
the Borrower.
(ii) Rating Agency Confirmations and Related Expenses. In
no event shall the Primary Servicer be permitted to waive any provision of
the Mortgage Loan Documents that require a Rating Agency Confirmation as a
condition to any action proposed by the related Borrower, or any
obligation of a Borrower to pay all or any portion of any fee payable in
connection with obtaining a Rating Agency Confirmation, in each case
unless the Master Servicer would be permitted to grant such waiver under
the terms of the Pooling and Servicing Agreement.
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(iii) Written Instruments. All modifications, amendments,
material waivers and other material actions entered into or taken in
respect of the Mortgage Loans pursuant to this Section 3.15 (other than
waivers of default interest and late charges, for which the consent of the
Master Servicer is required below), and all material consents, shall be in
writing. The Primary Servicer shall notify the Master Servicer, each
Rating Agency, the Certificate Administrator, the Trustee and the
Controlling Class Representative, in writing, of the consummation of any
such material modification, waiver, amendment or other action or consent
and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the
Special Servicer), an original counterpart of the agreement relating to
such modification, waiver, amendment or other action or consent, promptly
(and in any event within ten Business Days) following the execution
thereof. In addition, following the execution of any modification, waiver
or amendment agreed to by the Primary Servicer under Section 3.15(b), the
Primary Servicer shall deliver to the Master Servicer an Officer's
Certificate certifying that all of the requirements of Section 3.15(b)
have been satisfied; provided that, if such modification, waiver or
amendment involves an extension of the maturity of any Mortgage Loan, such
Officer's Certificate shall be so delivered before the modification,
waiver or amendment is agreed to.
(iv) No Adverse Tax Event. The Primary Servicer shall not
enter into any modification, waiver or amendment of any term of, or take
any of the other acts referenced in this Section 3.15 with respect to, any
Mortgage Loan that would result in an Adverse REMIC Event with respect to
any REMIC Pool or an Adverse Grantor Trust Event with respect to any
Grantor Trust Pool (the Primary Servicer shall not be liable for decisions
made under this subsection which were made in good faith and it may rely
on Opinions of Counsel in making such decisions).
(v) Default Interest and Late Fees. Notwithstanding
Section 3.02 of the Pooling and Servicing Agreement or any provision of
this Agreement, the Primary Servicer shall not waive any late fees or
default interest without the prior written consent of the Master Servicer.
(d) Direct Contact With Special Servicer. The Primary Servicer
shall be entitled to contact the Special Servicer directly in regard to any
Borrower request for an approval contemplated by this Section 3.15 if the
Special Servicer is entitled to grant or withhold consent to such request under
the terms of the Pooling and Servicing Agreement.
(e) Not Applicable to Specially Serviced Mortgage Loans.
Notwithstanding any provision of this Agreement to the contrary, in connection
with any Mortgage Loan that constitutes a Specially Serviced Mortgage Loan, the
Primary Servicer shall not have the authority to enter into, or the duty to make
a recommendation with respect to, any modification, waiver, amendment or consent
otherwise described in the foregoing provisions of this Section 3.15.
(f) Other Modifications, Waivers, Amendments and Consents. Except
as authorized under Section 3.08 or this Section 3.15, the Primary Servicer
shall not enter into any modification, waiver, amendment or consent with respect
to any Mortgage Loan or any instrument of satisfaction or cancellation, or of
full release or discharge with respect to any Mortgage Loan.
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SECTION 3.16. Specially Serviced Mortgage Loans.
(a) The Primary Servicer shall send a written notice to the Master
Servicer within one (1) Business Day after becoming aware of a Servicing
Transfer Event with respect to a Mortgage Loan, which notice shall identify the
applicable Mortgage Loan and set forth in reasonable detail the nature and
relevant facts of such Servicing Transfer Event and whether such Mortgage Loan
is covered by an Environmental Insurance Policy (and, for purposes of stating
whether such Mortgage Loan is covered by an Environmental Insurance Policy, the
Primary Servicer may rely on the Mortgage Loan Schedule). If the Master Servicer
recommends to approve such a transfer, it shall provide to the Special Servicer
and the Primary Servicer a copy of its recommendation. The Primary Servicer
shall, at that time, copy and provide its Mortgage Loan file and all related
documents to the Master Servicer, who will then forward such copies to the
Special Servicer.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Primary Servicer shall, if
so directed by the Master Servicer, notify the related Borrower of such transfer
in accordance with the Servicing Standard with a copy of that letter being sent
concurrently to the Master Servicer. The form and substance of such notice shall
be reasonably satisfactory to the Master Servicer. The Master Servicer shall
send a copy of such notice, along with the Mortgage Loan file if received from
the Primary Servicer, to the Special Servicer.
(c) The Primary Servicer shall continue to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans only to the extent that the duties or authorizations are not
transferred to the Special Servicer pursuant to the PSA. The Primary Servicer
shall notify the Master Servicer within one (1) Business Day of its receipt of
any collections from any Specially Serviced Mortgage Loan.
SECTION 3.17. Compliance with REMIC Provisions.
The Primary Servicer shall act in accordance with this Agreement,
the PSA and the REMIC Provisions and related provisions of the Code in order to
maintain the status of the REMICs created under the PSA and the Code. In
maintaining the status of such REMICs, the Primary Servicer shall take no action
or cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a
tax upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code or on prohibited
contributions pursuant to Section 860G(d)) unless the Master Servicer shall have
received a Nondisqualification Opinion (at the expense of the party seeking to
take such action) to the effect that the contemplated action will not endanger
such status or result in the imposition of such tax. If any tax is imposed on
any REMIC Pool, including "prohibited transactions" taxes as defined in Section
860F(a)(2) of the Code, any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, any taxes on contributions to any REMIC
Pool after the Startup Day pursuant to Section 860G(d) of the Code, and any
other tax imposed by the Code or any applicable provisions of state or local tax
laws, then such tax, together with all incidental costs and expenses (including
penalties and reasonable attorneys' fees), shall be charged to and paid by the
Primary Servicer if such tax arises out of or results from a breach of any of
its obligations under this Article III.
SECTION 3.18. Representations, Warranties and Covenants of the
Primary Servicer.
(a) The Primary Servicer hereby represents and warrants to and
covenants with the Master Servicer, as of the date hereof:
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(i) the Primary Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the State
of Ohio, and shall be and thereafter remain, in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, except where
the failure to so qualify or comply would not adversely affect the Primary
Servicer's ability to perform its obligations hereunder in accordance with
the terms of this Agreement;
(ii) the Primary Servicer has the full power and authority
to execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Primary
Servicer has duly and validly authorized the execution, delivery and
performance of this Agreement and this Agreement has been duly executed
and delivered by the Primary Servicer. This Agreement evidences the valid
and binding obligation of the Primary Servicer enforceable against the
Primary Servicer in accordance with its terms subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment
of or compliance with the terms and conditions of this Agreement will not
(1) result in a breach of any term or provision of its articles of
incorporation or (2) conflict with, result in a breach, violation or
acceleration of, or result in a default under, the terms of any other
material agreement or instrument to which it is a party or by which it may
be bound, or any law, governmental rule, regulation, or judgment, decree
or order applicable to it of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially
and adversely affects its ability to perform its obligations under this
Agreement;
(iv) no litigation is pending or, to the Primary Servicer's
knowledge, threatened, against it, that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or its
ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by it of, or compliance by it with, this
Agreement, or the consummation of the transactions contemplated hereby, or
if any such consent, approval, authorization or order is required, it has
obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in
the case of performance, that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder;
(vi) the Primary Servicer has errors and omissions
insurance coverage which is in full force and effect; and
(vii) the performance of the services by the Primary
Servicer contemplated by this Agreement are in the ordinary course of
business of the Primary Servicer and the Primary Servicer possesses all
licenses, permits and other authorizations necessary to perform its duties
hereunder.
(b) It is understood that the representations and warranties set
forth in this Section 3.18 shall survive the execution and delivery of this
Agreement.
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(c) Any cause of action against the Primary Servicer arising out
of the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice of such breach by any of the Primary
Servicer or the Master Servicer. The Primary Servicer shall give prompt notice
to the Master Servicer of the occurrence, or the failure to occur, of any event
that, with notice or the passage of time or both, would cause any representation
or warranty in this Section to be untrue or inaccurate in any respect.
SECTION 3.19. Merger or Consolidation of the Primary Servicer.
(a) Subject to the following paragraph, the Primary Servicer will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the state of its organization except as permitted herein and will
obtain and preserve its qualification to do business as a foreign entity in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
(b) The Primary Servicer may be merged or consolidated with or
into any Person, or transfer all or substantially all of its assets to any
Person, in which case any Person resulting from any merger or consolidation to
which the Primary Servicer shall be a party, or any Person succeeding to the
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 to
the Primary Servicer shall be qualified to service the Mortgage Loans in
accordance with this Agreement and the PSA.
SECTION 3.20. Limitation on Liability of the Primary Servicer
and Others.
(a) Neither the Primary Servicer nor any of the directors,
officers, employees or agents of the Primary Servicer shall be under any
liability to the Master Servicer for any action taken or for refraining from the
taking of any action in good faith, or using reasonable business judgment,
consistent with the Servicing Standard; provided that this provision shall not
protect the Primary Servicer or any such person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties under the Agreement or by reason of negligent
disregard of obligations and duties hereunder. The Primary Servicer and any
director, officer, employee or agent of the Primary Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person (including, without limitation, the Special Servicer) respecting any
matters arising hereunder or under the PSA. The Primary Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which is
not incidental to its duties to service the Mortgage Loans in accordance with
this Agreement; provided that the Primary Servicer shall undertake any such
action if instructed to do so by the Master Servicer. In such event, all legal
expenses and costs of such action shall be paid by the Master Servicer as a
Servicing Advance or otherwise in the manner provided in the PSA.
(b) In addition, the Primary Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Primary Servicer and conforming to the requirements of
this Agreement and the PSA. Subject to the Servicing Standard, the Primary
Servicer shall have the right to rely on information provided to it by the
Special Servicer, any sub-servicer and Borrowers, and will have no duty to
investigate or verify the accuracy thereof, but, for the avoidance of doubt,
this statement shall not be construed to limit subsection (c). Neither the
Primary Servicer, nor any director, officer, employee, agent or Affiliate, shall
be personally liable for any error of judgment made in good faith by any
officer, unless it shall be proved that the Primary Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Primary Servicer nor
any director, officer, employee, agent
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or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Primary Servicer may enter into sub-servicing agreements
with sub-servicers for the servicing and administration of the Mortgage Loans.
Notwithstanding the provisions of this Agreement or any other provisions of any
sub-servicing agreement, the Primary Servicer shall remain obligated and liable
to the Master Servicer for servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement and the applicable provisions
of the Pooling and Servicing Agreement to the same extent as if the Primary
Servicer was alone servicing and administering the Mortgage Loans; provided,
however, that any decision or recommendation involving the exercise of a Primary
Servicer's discretion as a "lender" under any loan document with respect to a
Mortgage Loan shall be exercised only by the Primary Servicer and may not be
delegated to a sub servicer. The Primary Servicer shall maintain and perform
policies and procedures to monitor such subcontractors' performance of the
services for which they are employed. The Primary Servicer represents and agrees
that, with respect to each sub-servicer with which the Primary Servicer has
entered into a sub-servicing agreement as of or before the Closing Date, one of
the following statements is true: (A) such sub-servicer does not, in light of
the nature of the services performed and the terms and conditions of the
sub-servicing agreement, constitute an entity for which a document described in
Item 1122(a), 1122(b) or 1123 under Regulation AB could be required now or in
the future; (B) the Primary Servicer has contractually obligated such
sub-servicer, at all times during such entity's tenure as sub-servicer, to
deliver (annually not later than the date when the Primary Servicer is required
to deliver analogous documents hereunder) to the Master Servicer, or to the
Primary Servicer (which shall cause same to be delivered to the Master
Servicer), the documents described in Items 1122(a), 1122(b) and 1123 under
Regulation AB (even if not actually then required under Regulation AB); or (C)
such sub-servicer is initially an entity described in clause (A), but the terms
of the related sub-servicing agreement provide for a subsequent increase in such
sub-servicer's sub-servicing rights and duties that would cause such entity no
longer to be an entity described in clause (A) above, but, from and after the
date when this occurs, such sub-servicer will be an entity described in clause
(B) above under the terms of such sub-servicing agreement. The Primary Servicer
shall not enter into or amend a sub-servicing agreement after the Closing Date,
unless the statement made in clause (A), clause (B) or clause (C) would be true
upon the execution of such sub-servicing agreement or amendment. Following
reasonable request of the Master Servicer, the Primary Servicer shall provide a
current list of sub-servicers who are described by clause (A), clause (B) and
clause (C).
SECTION 3.21. Primary Servicer May Resign.
The Primary Servicer may resign from the obligations and duties
hereby imposed on it at any time. No such resignation shall be effective until a
successor primary servicer (which may include the Master Servicer and that, if
not the Master Servicer, must be acceptable to the Master Servicer) has fully
assumed in writing all the obligations of the Primary Servicer under this
Agreement.
SECTION 3.22. Assignment of Servicing.
With respect to the responsibility of the Primary Servicer to
service the Mortgage Loans 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 3.22, the
Primary Servicer shall not assign this Agreement or the servicing hereunder;
provided, however, that, the Primary Servicer may transfer its rights, interest
and obligations under this Agreement if (i) the Primary Servicer causes to be
delivered to the Master Servicer a Rating Agency Confirmation with respect to
such assignment, and, if the Trust is then subject
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to the reporting requirements under the Exchange Act, the Master Servicer and
the Depositor have consented in writing to such transfer, which consent shall
not be unreasonably withheld, or (ii) the Master Servicer and the Depositor have
consented in writing to such transfer, which consent shall not be unreasonably
withheld. No such assignment shall be effective unless the transferee shall have
assumed in writing all of the Primary Servicer's obligations and duties
hereunder.
SECTION 3.23. Indemnification.
(a) The Master Servicer and the Primary Servicer each agrees to
and hereby does indemnify and hold harmless the Master Servicer, in the case of
the Primary Servicer, and the Primary Servicer, in the case of the Master
Servicer (including any of their partners, directors, officers, employees or
agents) from and against any and all liability, claim, loss, cost, penalty,
expense or damage of the Master Servicer, in the case of the Primary Servicer,
and the Primary Servicer, in the case of the Master Servicer (including any of
their partners, directors, officers, employees or agents) resulting in any way
from either the failure of the indemnitor to observe or perform any of its
covenants or agreements contained in this Agreement or the breach by the
indemnitor of a representation or warranty contained in this Agreement. For the
avoidance of doubt, neither the Master Servicer nor the Primary Servicer shall
have any liability under the immediately preceding sentence for any loss that is
caused by any action that is required to be taken by the Master Servicer under
the Pooling and Servicing Agreement or by the Primary Servicer under this
Agreement or the Master Servicer's failure or the Primary Servicer's failure to
take any action that the Master Servicer or the Primary Servicer is required to
refrain from taking under the Pooling and Servicing Agreement or this Agreement,
respectively. Each indemnified party hereunder shall give prompt written notice
from time to time to the applicable indemnifying party or parties of material
developments in matters which may give rise to liability of such indemnifying
parties hereunder; provided, however, that failure to give such notice shall not
relieve the indemnifying party of any liability except to the extent of actual
prejudice. The indemnifying party shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Primary Servicer) and pay all
expenses in connection therewith, without right of reimbursement. Each
indemnified party hereunder shall give prompt written notice from time to time
to the applicable indemnifying party or parties of material developments in
matters which may give rise to liability of such indemnifying parties hereunder;
provided, however, that failure to give such notice shall not relieve the
indemnifying party of any liability except to the extent of actual prejudice.
The Primary Servicer shall indemnify the Depositor for any breaches of the last
sentence of Section 3.20(c) on the same terms and conditions.
(b) The Master Servicer agrees to use reasonable efforts to pursue
the Trust Fund for indemnification against any loss, liability or expense
suffered by the Primary Servicer in connection with the Primary Servicing of the
Mortgage Loans as to which the Pooling and Servicing Agreement grants to the
Master Servicer or its agents a right to indemnification from the Trust Fund.
The Master Servicer further agrees to remit promptly to the Primary Servicer any
proceeds deemed due to the Primary Servicer recovered by the Master Servicer,
net of expenses incurred by (and not otherwise reimbursed to) the Master
Servicer in pursuing such indemnification. The Master Servicer's obligations
under this Section shall be conditioned on (i) its receipt of written notice
from the Primary Servicer specifying its loss, liability or expense, and (ii)
the continued cooperation by the Primary Servicer with the Master Servicer in
pursuing such indemnification.
SECTION 3.24. Assumption or Termination by Trustee.
If the Master Servicer shall for any reason no longer be the Master
Servicer, pursuant to the Pooling and Servicing Agreement (including, without
limitation, by reason of an Event of Default and its termination thereunder),
the successor Master Servicer (including the Trustee or its designee) shall
assume the terminated Master Servicer's obligations or responsibilities under
this Agreement, provided
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that the Primary Servicer is not in default under this Agreement, as a condition
precedent to its becoming successor Master Servicer.
SECTION 3.25. Purchaser Termination of Agreement.
Any purchaser of a Mortgage Loan pursuant to the Pooling and
Servicing Agreement may terminate this Agreement with respect to such purchased
Mortgage Loan at its option and without penalty.
SECTION 3.26. Inspection Rights of Master Servicer.
The Primary Servicer shall afford the Master Servicer and the
Trustee, upon reasonable notice and during normal business hours, reasonable
access to all records, information, books and documentation regarding the
Mortgage Loans, and all accounts, insurance policies and other relevant matters
relating to this Agreement, and access to Servicing Officers of the Primary
Servicer responsible for its obligations hereunder. Without limiting the
foregoing, the Master Servicer may visit the offices of the Primary Servicer no
more than once annually (including visits under similar primary servicing
agreements between the Master Servicer and the Primary Servicer for commercial
mortgage loans) for the purpose of reviewing the Primary Servicer's compliance
with this Agreement and such similar agreements, upon reasonable notice and
during normal business hours, and Primary Servicer will cooperate with Master
Servicer to provide Master Servicer with the information that Master Servicer
reasonably requests to permit such review. Notwithstanding the foregoing,
nothing in this paragraph shall require the Primary Servicer to (i) certify or
verify the accurateness or completeness of any information provided to the
Primary Servicer by third parties, (ii) to certify information other than to the
Primary Servicer's knowledge and in accordance with the Primary Servicer's
responsibilities hereunder or under any other applicable servicing agreement or
(iii) with respect to completeness of information and reports, to certify
anything other than that all fields of information called for in written reports
prepared by the Primary Servicer have been completed except as they have been
left blank on their face.
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ARTICLE IV
EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS
SECTION 4.01. Exchange Act Reports; Annual Compliance
Documents.
(a) Regulation AB Compliance. The Primary Servicer shall comply
with the reporting, certification and other requirements contemplated to be
complied with by a "Reporting Servicer", a "Primary Servicer", a "Servicing
Function Participant" or an "Additional Servicer" under Article XI of the
Pooling and Servicing Agreement (whether or not the Primary Servicer's
activities satisfy the percentage requirement set forth in the definition of
"Servicing Function Participant" under the Pooling and Servicing Agreement (or,
implicitly, in the definitions of "Reporting Servicer" or "Primary Servicer"
under the Pooling and Servicing Agreement) or the definitional requirements of
"Additional Servicer" under the Pooling and Servicing Agreement). The Primary
Servicer shall deliver any reports, certifications or other documents as
required by Section 11.11, Section 11.12 or Section 11.13 of the PSA or by this
Section 4.01 in accordance with the delivery requirements set forth therein,
provided, however, that if the Primary Servicer delivers all required reports,
certifications or other documents to the Master Servicer by March 7th of the
applicable year (nothwithstanding any other delivery requirement set forth in
the PSA), the Master Servicer, on the Primary Servicer's behalf, shall forward
any reports, certifications or other documents delivered by the Primary Servicer
to the other transaction parties as required by Section 11.11, Section 11.12 or
Section 11.13 of the PSA.
(b) Filing Obligations - General. The Primary Servicer shall
cooperate with the Master Servicer, the Certificate Administrator, the Depositor
and any other Applicable Depositor in connection with the satisfaction of the
Trust's (or another ABS Issuing Entity's) reporting requirements under the
Exchange Act.
(c) Certain Reports, Certifications and Compliance Information.
(i) Sub-servicers. With respect to all sub-servicers,
other than sub-servicers who are contractually obligated to deliver
analogous annual compliance documents for the relevant period (as
contemplated by the last two sentences of Section 3.20), the compliance
documents required to be delivered by the Primary Servicer as contemplated
by Sections 11.11 (compliance statement), Section 11.12 ( annual report on
assessment of compliance) and Section 11.13 (registered public accounting
firm attestation report) of the PSA shall be rendered as if all activities
performed by sub-servicers had been performed directly by the Primary
Servicer.
(ii) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Back-Up Certification. In furtherance
of the second sentence of Section 11.08 of the Pooling and Servicing
Agreement, simultaneously with its delivery of the Primary Servicer Form
10-K Information Report, the Primary Servicer shall execute and deliver to
or as directed by the Master Servicer and/or the Depositor a backup
certification, which shall be in the precise form attached as Exhibit M-2
to the Pooling and Servicing Agreement.
(iii) Annual Compliance Documents. The Primary Servicer
shall deliver an annual compliance statement pursuant to Item 1123 of
Regulation AB (as contemplated by Section 11.11 of the Pooling and
Servicing Agreement), an annual report on assessment of compliance with
Servicing Criteria pursuant to Item 1122 of Regulation AB (as contemplated
by Section 11.12 of the Pooling and Servicing Agreement) and a registered
public accounting firm attestation report pursuant to Item 1122 of
Regulation AB (as contemplated by Section 11.13 of the Pooling and
Servicing Agreement), in each case regardless of the number and percentage
of
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Mortgage Loans serviced at any time by the Primary Servicer, for so long
as the Trust is subject to the reporting requirements of the Exchange Act.
The Primary Servicer shall deliver an annual compliance statement pursuant
to Item 1123 of Regulation AB (as contemplated by Section 11.11 of the
Pooling and Servicing Agreement) and in lieu of delivering or causing to
be delivered a report on an assessment of compliance with the Relevant
Servicing Criteria otherwise required to be delivered by such Person under
Section 11.12 and a related attestation report of a registered public
accounting firm otherwise required to be delivered by such Person under
Section 11.13, to cause a firm of independent public accountants that is a
member of the American Institute of Certified Public Accountants to render
and to deliver a statement to the Master Servicer to the effect that such
firm has examined the servicing operations of the Primary Servicer for the
previous calendar year and that, on the basis of such examination,
conducted substantially in compliance with USAP, such firm confirms that
the Primary Servicer has complied during such previous calendar year with
the minimum servicing standards (to the extent applicable to commercial
and multifamily mortgage loans) identified in USAP in all material
respects, except for such significant exceptions or errors in records
that, in the opinion of such firm, USAP requires it to report, for so long
as the Trust is no longer subject to the reporting requirements of the
Exchange Act. In rendering its report such firm may rely, as to matters
relating to the direct servicing of securitized commercial and multifamily
mortgage loans by sub-servicers, upon comparable reports of firms of
independent certified public accountants rendered on the basis of
examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to those sub-servicers.
(d) Forms of Reports. Each report and certification delivered by
the Primary Servicer shall appear under a cover substantially in the form
attached to the PSA as Exhibit Q thereto. Each report, certification and
statement that is delivered or rendered by the Primary Servicer itself shall be
signed by the senior officer of the Primary Servicer in charge of the servicing
function of the Primary Servicer. In no event shall any statement or legend
(whether such statement is included in, accompanies or is referred to in a
report or certification hereunder) that purports to disclaim liability for any
report or certification, or any portion thereof, have any force or effect to the
extent that such limitation on liability would not be given effect under the
Securities Act, the Exchange Act or the Regulations if a similar statement or
legend were made by or on behalf of the applicable ABS Issuing Entity, the
Master Servicer or the Depositor in a report or certification filed with the SEC
or otherwise pursuant to the Regulations. The preceding statement shall not be
construed to allow any limitation on liability that is not otherwise
contemplated under this Section. The Primary Servicer shall deliver or caused to
be delivered to the Master Servicer a copy of each notice, report, certification
or other document delivered by or on behalf of the Primary Servicer to any
Person (other than the Master Servicer) under Article XI of the Pooling and
Servicing Agreement, in each case simultaneously with the delivery thereof to
such Person.
(e) Evidence of Engagement of Accounting Firm. Not later than
November 1 of each calendar year (for so long as the Trust is subject to the
reporting requirements of the Exchange Act), the Primary Servicer shall deliver
to the Master Servicer evidence (reasonably satisfactory to the Master Servicer)
of the Primary Servicer's engagement of an accounting firm to perform the report
described in Section 11.13 of the Pooling and Servicing Agreement. In addition,
such firm either shall be a "big four" accounting firm or subject to the
reasonable approval of the Master Servicer.
(f) Development of Applicable Servicing Criteria. If the Master
Servicer determines that any Relevant Servicing Criteria are not applicable to
the Primary Servicer and the Master Servicer so requests, the Primary Servicer
shall cooperate with a Master Servicer in developing a subset of the Relevant
Servicing Criteria that are applicable to the Primary Servicer based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Primary Servicer and that are backed by the same
asset type backing the Certificates.
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(g) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans that
are not serviced under this Agreement: (i) the final prospectus supplement
prepared by the Depositor with respect to the offering of the securities issued
by the ABS Issuing Entity, (ii) any reports delivered from time to time by the
Master Servicer, the master servicer for the ABS Issuing Entity (if such party
is not the Master Servicer), the trustee for the ABS Issuing Entity and/or the
paying agent, certificate administrator or other similar party for the ABS
Issuing Entity and (iii) information provided by the Depositor.
(h) Servicing Transfers. Notwithstanding any resignation, removal
or termination of the Primary Servicer, or any assignment of the obligations of
the Primary Servicer, pursuant to the other provisions of this Agreement, the
Primary Servicer shall remain obligated to comply from time to time with the
reporting and certification obligations that would have been applicable under
Section 4.01(a) and/or Section 4.01(c)(ii) in the absence of such resignation,
removal, termination or assignment, but only to the extent related to the time
period prior to the effective date of such resignation, removal termination or
assignment. Without limiting the generality of the preceding statement, if the
Primary Servicer voluntarily assigns its obligations under this Agreement
pursuant to the other provisions of this Agreement (or with the consent of the
Master Servicer), then the successor Primary Servicer shall be obligated to
cause the predecessor Primary Servicer to perform the surviving reporting and
certification obligations set forth above and the failure to do so will
constitute an "event of default" on the part of the successor Primary Servicer.
(i) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to the
date of this Agreement. The parties acknowledge that the provisions of this
Section shall not be construed to require the Primary Servicer to sign any Form
8-K, Form 10-D or Form 10-K to be filed with respect to the ABS Issuing Entity
with the SEC (except to the extent, if any, that the Regulations require such
signature).
(j) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an interpretation of
the Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Master Servicer or the Applicable
Depositor (pursuant to such agreements as they may enter into between each other
in their respective sole discretion), on the other, the determination of the
Master Servicer or the Applicable Depositor shall be conclusive and binding in
the absence of manifest error. The Primary Servicer shall be entitled to rely on
any such determination that is made by the Master Servicer or the Applicable
Depositor. In the event that the Primary Servicer initiates legal proceedings
asserting an interpretation that differs from any such determination of the
Master Servicer or the Applicable Depositor, then the Primary Servicer shall
comply with such determination of the Master Servicer or the Applicable
Depositor unless and until a final, nonappealable judgment is rendered in
connection with such proceedings, in which case such final, nonappealable
judgment shall control. If the Primary Servicer receives notice of
interpretations hereunder from the Master Servicer and the Applicable Depositor
that conflict with each other, the Primary Servicer shall promptly notify the
Master Servicer and the Applicable Depositor, in which case the Primary Servicer
shall comply with the interpretation described in the applicable notice from the
Master Servicer.
(k) Specific Regulatory Determinations. Notwithstanding any
contrary provisions set forth in this Agreement, if the SEC or its staff issues
any order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the Applicable
Depositor and/or its affiliates or specifically to the applicable ABS Issuing
Entity, then, subject to the immediately succeeding sentence, the Primary
Servicer shall comply with such order, no-action letter or staff interpretation
insofar as such order, no-action letter or staff interpretation, or the
interpretations
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reflected therein, does or would (if implemented) effect the reporting and
certification obligations of the Primary Servicer hereunder. The compliance
obligation otherwise described in the preceding sentence shall not be required
unless there shall have been delivered to the Primary Servicer a notice of such
order, no-action letter or staff interpretation, which notice attaches a copy of
the applicable order, no-action letter or staff interpretation or relevant
excerpts thereof.
(l) Indemnification. The Primary Servicer shall indemnify and hold
harmless each of the Master Servicer, any master servicer for an ABS Issuing
Entity other than the PWR17 Trust, and each Certification Party (each such
person, an "Indemnified Person") against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and expenses and related costs,
judgments and other costs and expenses incurred by such Indemnified Person
arising out of (i) a breach of the Primary Servicer's representations and
warranties under the third-to-last sentence of Section 3.20(c), (ii) any failure
on the part of the Primary Servicer to perform any of its obligations under this
Section 4.01 or the next-to-last last sentence of Section 3.20(c) or (iii)
negligence, bad faith or willful misconduct on the part of the Primary Servicer
in the performance of such obligations. The Primary Servicer shall have no
obligation to indemnify any Indemnified Person for an inaccuracy in the
Performance Certification of any other Person.
If the indemnification provided for in the preceding paragraph is
unavailable or insufficient to hold harmless any Indemnified Person, then the
Primary Servicer shall contribute to the amount paid or payable to the
Indemnified Person as a result of the losses, claims, damages or liabilities of
the Indemnified Person in such proportion as is appropriate to reflect the
relative fault of the Indemnified Person on the one hand and the Primary
Servicer on the other in connection with any breach, failure, negligence, bad
faith or willful misconduct described in clause (i), (ii) or (iii) of the
preceding paragraph.
The foregoing shall be in addition to any remedy that an Indemnified
Person may otherwise have.
The Master Servicer shall indemnify and hold harmless the Primary
Servicer against out-of-pocket liabilities, costs, fees and expenses, including
reasonable legal fees and expenses incurred by the Primary Servicer arising out
of (i) any interpretational determination made by the Master Servicer pursuant
to Section 4.01(j) that conflicts with the interpretational determination made
by the Primary Servicer pursuant to Section 4.01(j), provided that a final,
nonappealable judgment of a court of competent jurisdiction agrees with or
otherwise confirms the Primary Servicer's determination of the Primary
Servicers' reporting or certification obligations or (ii) any termination of the
Primary Servicer that is made, or claimed or purported to be made, under Section
5.01(a)(viii) in circumstances in which the standards and conditions for
termination set forth in such Section 5.01(a)(viii) were not actually satisfied.
If the indemnification provided for in the preceding paragraph is
unavailable or insufficient to hold harmless the Primary Servicer, then the
Master Servicer shall contribute to the amount paid or payable to the Primary
Servicer as a result of the liabilities, costs, fees and expenses in such
proportion as is appropriate to reflect the relative fault of the Primary
Servicer on the one hand and the Master Servicer on the other in connection with
any improper determination or wrongful termination described in clause (i) or
(ii) of the preceding paragraph.
The foregoing shall be in addition to any remedy that the Primary
Servicer may otherwise have.
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(m) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 4.01 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Primary Servicer to delegate its obligations under this Agreement.
(n) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(o) Changes in Law. In the event that the Securities Act, the
Exchange Act or the Regulations are amended to impose additional or more
stringent reporting and/or certification obligations with respect to any ABS
Issuing Entity, which additional or more stringent reporting and/or
certification obligations are not otherwise effective pursuant to the other
provisions of this Agreement, the Primary Servicer shall negotiate in good faith
with the Master Servicer for an amendment to this Section 4.01 to result in
compliance with such law or regulation as so amended (if applicable to the
Primary Servicer). In the event that the Securities Act, the Exchange Act or the
Regulations are amended to reduce reporting and/or certification obligations
with respect to any ABS Issuing Entity, the Master Servicer shall negotiate in
good faith with the Primary Servicer for an amendment to this Section 4.01 to
result in compliance with such law or regulation as so amended.
(p) Beneficiaries. This Section shall inure to the benefit of and
be enforceable by the Master Servicer and the Depositor; and, with respect to
subsection (l), each person or entity referred to therein.
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ARTICLE V
DEFAULT
SECTION 5.01. Events of Default.
(a) "Event of Default," wherever used in this Agreement with
respect to the Primary Servicer, means any of the following events:
(i) any failure by the Primary Servicer to deposit into
the Primary Certificate Account, or to deposit into, or to remit to the
Master Servicer for deposit into, the Master Servicer's Collection
Account, or to remit to the Special Servicer on a timely basis, any amount
required to be so deposited or remitted under this Agreement or the
failure by the Primary Servicer to notify the Master Servicer of material
information it has actual knowledge of which would require the Master
Servicer to make a Servicing Advance and such failure to notify causes the
Master Servicer to trigger an Event of Default as defined in the Pooling
and Servicing Agreement; or
(ii) except in the case of Section 5.01(a)(iii), any
failure on the part of the Primary Servicer to duly observe or perform in
any respect any other of the covenants or agreements on the part of the
Primary Servicer contained in this Agreement which continues unremedied
for a period of fifteen (15) days 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 the Master Servicer; or
(iii) any failure by the Primary Servicer to comply with one
or more provisions of Section 4.01 or the last sentence of Section
3.20(c); provided, however, that all of the following provisions shall
apply:
(A) to the extent the Master Servicer determines, in its
reasonable discretion, following consultation with the
Applicable Depositor, that the Primary Servicer is in
good faith attempting to remedy such failure and no
Certification Party will be materially and adversely
affected by giving the Primary Servicer an opportunity
to cure such failure, the Master Servicer may,
following consultation with the Applicable Depositor,
give the Primary Servicer such opportunity;
(B) the period of time to cure such failure may not exceed
three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would
result in either failure by the Master Servicer (or
the master servicer in an Other Securitization) to
submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor
(or another Applicable Depositor) to submit to the
SEC, timely, complete and accurate reports of the type
described in Article XI of the Pooling and Servicing
Agreement;
(D) unless the Master Servicer otherwise consents, the
cure period described in this Section 5.01(a)(iii)
shall end on the earlier of (I) the date on which the
Master Servicer has delivered (or would be required to
deliver) a report or certification to the Applicable
Depositor or to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a
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result of such failure of the Primary Servicer and
(II) the date on which the Applicable Depositor has
delivered (or would be required to deliver) a report
or certification to the SEC, which report is or would
be inaccurate, incomplete or unable to be rendered as
a result of such failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to comply
with any of its obligations under Section 4.01(a)
and/or Section 4.01(c) hereof on or prior to the dates
by which such obligations are to be performed pursuant
to, and as set forth in, such Sections, (x) the
Primary Servicer subsequently complies with such
obligations before the Master Servicer gives written
notice to the Primary Servicer that it is terminated
in accordance with this Section 5.01(a)(iii) and
Section 5.01(b), (y) the Primary Servicer's failure to
comply does not result in an Event of Default on the
part of the Master Servicer under Section 7.01(a)(vi)
or Section 7.01(a)(xiv) of the Pooling and Servicing
Agreement, (z) the Primary Servicer's failure to
comply does not cause the Certificate Administrator to
fail in its obligations to timely file the related
Form 8-K, Form 10-D or Form 10-K, as the case may be,
by the related 8-K Filing Deadline, 10-D Filing
Deadline or 10-K Filing Deadline, then such failure of
the Primary Servicer to so comply shall cease to be a
Primary Servicer Default under this Section
5.01(a)(iii) on the date on which such Form 8-K, Form
10-D or Form 10-K is so filed; or
(iv) any breach on the part of the Primary Servicer of any
representation or warranty under this Agreement which materially and
adversely affects the interests of the Master Servicer or any Class of
Certificateholders and which continues unremedied for a period of thirty
(30) 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 the
Master Servicer; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(vi) 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
(vii) the Primary Servicer shall admit in writing its
inability to pay its debts generally as they become due, file or consent
to the filing of a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for
the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing;
or
(viii) any compliance assessment delivered by the Primary
Servicer, or any attestation thereof by an accounting firm, includes an
exception or variance from the criteria assessed therein that the Master
Servicer determines, in its reasonable and good faith judgment, is
-36-
a material exception or variance from the servicing criteria addressed
therein or from the established practices of prudent institutional
servicers of commercial mortgage loans held by securitization vehicles; or
(ix) (A) a Servicing Officer of the Primary Servicer
receives actual knowledge that Fitch has (i) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates
(and such qualification, downgrade or withdrawal shall not have been
reversed by Fitch within 60 days of the date thereof), or (ii) placed one
or more Classes of Certificates on "watch status" in contemplation of a
rating downgrade or withdrawal (and such "watch status" placement shall
not have been withdrawn by Fitch within 60 days of the date that such
Servicing Officer of the Primary Servicer having obtained such actual
knowledge) and, in the case of either of clauses (i) or (ii), citing
servicing concerns with the Primary Servicer as the sole or material
factor in such rating action or (B) both (i) a Servicing Officer of the
Primary Servicer receives notice from Fitch or S&P to the effect that the
continuation of the Primary Servicer in its capacity as such would result
in the downgrade or withdrawal of any rating then assigned by Fitch or
S&P, as the case may be, to any Class of Certificates and (ii) such notice
is not withdrawn, terminated or rescinded within 90 days following the
Primary Servicer's receipt of such notice.
The Primary Servicer agrees to give prompt written notice to the
Master Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Event of Default.
(b) If any Event of Default shall occur and be continuing, then,
and in each and every such case, so long as such Event of Default shall not have
been remedied, the Master Servicer 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 Mortgage Loans and the
proceeds thereof. From and after the receipt by the Primary Servicer of such
written notice, all authority and power of the Primary Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer pursuant to and under this Section, and,
without limitation, the Master Servicer, after such termination of the Primary
Servicer's rights hereunder, 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 Mortgage Loans and related documents, or
otherwise. The Primary Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than ten (10) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) reasonably 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
Business Day to the Master Servicer for administration by it of all cash amounts
received by the Primary Servicer which shall at the time be or should have been
credited by the Primary Servicer to the related Primary Certificate Account, the
Master Servicer's Collection Account, and any Escrow Accounts, or thereafter be
received with respect to the Mortgage Loans. Notwithstanding other provisions of
this paragraph, the Primary Servicer shall continue to be entitled to receive
the payment of all amounts accrued or owing to it under this Agreement on or
prior to the date of such termination, whether in respect of Servicing Advances
or otherwise, and it and its partners, directors, officers, employees and agents
shall continue to be entitled to the benefits of Section 3.20 of this Agreement
notwithstanding any such termination. The rights of the Master Servicer to
terminate the Primary Servicer upon the occurrence of an Event of Default as set
forth above shall be in addition to any other rights the Master Servicer may
have at law or in equity.
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SECTION 5.02. 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 Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE VI
TERMINATION
SECTION 6.01. Termination.
(a) Except as otherwise specifically set forth herein, the
obligations and responsibilities of the Primary Servicer shall terminate: (i)
upon the later of the final payment or other liquidation of the last Mortgage
Loan and the remittance of all funds due hereunder with respect to such Mortgage
Loans; (ii) by mutual consent of the Primary Servicer and the Master Servicer in
writing; (iii) pursuant to Section 6.02 below; (iv) upon termination of the
Pooling and Servicing Agreement; or (v) pursuant to Section 3.25 hereof with
respect to such Mortgage Loan. Should the Master Servicer be terminated under
the PSA, any successor Master Servicer shall assume the terminated Master
Servicer's obligations and responsibilities under the PSA and under this
Agreement, provided that the Primary Servicer is not in default under this
Agreement, as a condition precedent to its becoming successor Master Servicer.
(b) The Primary Servicer shall be entitled to all fees,
compensation and interest and earnings due to the Primary Servicer on the
Mortgage Loans accrued through the date of termination of its obligations and
rights under this Agreement; provided, however, that the Primary Servicer shall
continue to collect the Excess Servicing Fee after termination in accordance
with the terms of this Agreement.
SECTION 6.02. Termination with Cause.
The Master Servicer may, at its sole option, terminate any rights
that the Primary Servicer may have hereunder with respect to any or all of the
Mortgage Loans, as provided in Section 6.01 of this Agreement upon the
occurrence of an Event of Default, after the expiration of the applicable notice
and cure periods, if any, granted to Primary Servicer. Any notice of termination
shall be in writing and delivered to the Primary Servicer as provided in Section
7.03 of this Agreement.
SECTION 6.03. Resignation of the Master Servicer.
The Master Servicer shall not resign from the duties and obligations
imposed hereunder, except in connection with a resignation of its duties under
the Pooling and Servicing Agreement that is effected pursuant to and in
accordance with the Pooling and Servicing Agreement. In the case of any such
resignation, the resigning Master Servicer shall cause the proposed successor
Master Servicer to agree, in writing, to be bound by all of the duties and
obligations of the Master Servicer under the terms of this Agreement, without
modification, except for modifications which do not adversely affect the rights
of the Primary Servicer hereunder.
-39-
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Successor to the Primary Servicer.
Concurrently with the resignation or termination of the Primary
Servicer's responsibilities and duties under this Agreement pursuant to Sections
3.21, 6.01 or 6.02, 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 shall succeed to all 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 7.02. Records.
With respect to the Mortgage Loans, the Primary Servicer shall, upon
the reasonable request of the Master Servicer, make available its records
relevant to the performance of the Primary Servicer's obligations hereunder.
SECTION 7.03. Notices.
All demands, notices, consents and communications hereunder shall be
in writing and shall be deemed to have been duly given when personally delivered
or mailed by first class mail, postage prepaid, or by recognized overnight
courier, to the following addresses:
(i) if to the Master Servicer:
▇▇▇▇▇ Fargo Bank, National Association,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Commercial Mortgage Servicing
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ Fargo Bank, National Association,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(ii) if to the Primary Servicer:
Nationwide Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Servicing
or such other address as may hereafter be furnished to the other party by like
notice.
-40-
SECTION 7.04. 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 any Mortgage Loan 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 7.05. 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 7.06. 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, without regard to conflict of laws principles applied in the State of New
York.
SECTION 7.07. Protection of Confidential Information.
The Primary Servicer shall keep confidential and shall not divulge
to any party other than the Master Servicer, the Depositor or the Trustee,
without the Master Servicer's prior written consent, any information pertaining
to the Mortgage Loans 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. In addition, the Master Servicer shall keep confidential
and shall not divulge to any party other than the Depositor or the Trustee,
without the Primary Servicer's written consent, any information which it obtains
in its capacity as Master Servicer with regard to the Primary Servicer.
SECTION 7.08. Intention of the Parties.
It is the intention of the parties this Agreement constitutes a
contract for servicing the Mortgage Loans. Accordingly, the parties hereby
acknowledge that the Trustee, on behalf of the Certificateholders, remains the
sole and absolute beneficial owner of the mortgage loans (including the Mortgage
Loans) and all rights related thereto.
SECTION 7.09. Beneficiaries.
The parties hereto agree that the Trustee is an intended third-party
beneficiary of this Agreement to the extent necessary to obtain the benefits of
the performance of the obligations to the Trustee of each party hereto and that
the Depositor and other persons identified in Section 4.1 are intended is third
party beneficiaries of this Agreement to the extent of the rights afforded to
them hereunder. However, none of the Depositor, the Trust Fund, the Trustee
(except to the extent the Trustee or its designee assumes the obligations of the
Master Servicer hereunder), any successor Master Servicer
-41-
(unless and to the extent that the successor Master Servicer is a party to this
Agreement), as the case may be, or any Certificateholder shall have any duties
or any liabilities arising hereunder.
SECTION 7.10. 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 permitted assigns of the Primary Servicer and the Master
Servicer.
SECTION 7.11. Waivers and Amendments.
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. This Agreement may
only be amended with the consent of the Primary Servicer and the Master
Servicer. No amendment to the Pooling and Servicing Agreement that purports to
change the rights or obligations of the Primary Servicer hereunder shall be
effective against the Primary Servicer without the consent of the Primary
Servicer. For so long as any ABS Issuing Entity is subject to the reporting
requirements of the Exchange Act, the parties hereto may not amend or modify any
provision of Section 4.01, Section 5.01(a)(iii), the last sentence of Section
3.20(c), the last two sentences of Section 3.26 or this sentence without the
Depositor's prior written consent.
SECTION 7.12. Exhibits.
The exhibits to this Agreement and the Pooling and Servicing
Agreement are hereby incorporated by reference and made a part hereof and are an
integral part of this Agreement.
SECTION 7.13. Reproduction of Documents.
The provisions with respect to reproduction of documents set forth
in the Pooling and Servicing Agreement are hereby incorporated herein by
reference, provided that references therein to the Pooling and Servicing
Agreement shall, for purposes of this Agreement, be deemed to be references to
this Agreement.
SECTION 7.14. Further Assurances.
With respect to the Mortgage Loans, 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.
-42-
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.
NATIONWIDE LIFE INSURANCE COMPANY
Primary Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Leader Real Estate Investments
Authorized Signatory
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Kristian ▇. ▇. ▇▇▇▇▇▇▇▇▇
Name: Kristian ▇. ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
Exhibit C
Mortgage Loan Schedule
Primary Excess Primary Total Primary
Loan Servicing Servicing Servicing Cut-Off
Pool Fee Rate Fee Rate Fee Rate Date
No. Loan Name (bps) (bps) (bps) Balance
---- ---------------------------------- --------- -------------- ------------- ------------
05 Westin Building 0.500 2.500 3.000 $110,000,000
27 All Seasons of Rochester Hills 1.000 5.000 6.000 $22,000,000
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 1.000 7.000 8.000 $16,647,270
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Center 1.000 7.000 8.000 $11,840,000
72 Coastal Sunbelt Warehouse 1.000 7.000 8.000 $10,725,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 1.000 3.000 4.000 $10,255,000
83 Hillcrest Shopping Center 1.000 7.000 8.000 $9,991,336
99 Hilton Garden Inn- Wichita 1.000 11.000 12.000 $8,440,000
118 Iskalo Office and Retail Portfolio 1.000 5.000 6.000 $6,960,801
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 1.000 3.000 4.000 $5,865,000
143 PetSmart 1.000 7.000 8.000 $5,744,954
152 Judge Building 1.000 6.000 7.000 $5,384,907
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1.000 6.000 7.000 $5,000,000
170 Town Centre Offices 1.000 7.000 8.000 $4,496,161
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1.000 7.000 8.000 $4,120,000
178 BrandiCorp Ground Lease 1.000 7.000 8.000 $3,996,552
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.000 7.000 8.000 $3,992,872
181 Bridges at Smoky Hill 1.000 4.000 5.000 $3,900,000
193 FAL Building 1.000 7.000 8.000 $3,497,122
206 ▇▇▇▇▇▇▇ Crossing 1.000 7.000 8.000 $3,144,556
209 Auto Palace 1.000 6.000 7.000 $3,000,000
220 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office 1.000 7.000 8.000 $2,796,249
221 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office 1.000 7.000 8.000 $2,794,206
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1.000 4.000 5.000 $2,785,000
228 Summer Village 1.000 7.000 8.000 $2,692,968
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 1.000 7.000 8.000 $2,678,502
EXHIBIT Q
Fee, Timing and Consent Addendum
--------------------------------
Fee, Timing, and Consent Addendum
To the extent the consent of the Master Servicer or Special Servicer is required
under the Primary Servicing Agreement or Pooling and Servicing Agreement before
the Primary Servicer is permitted to undertake particular actions referenced
below, this addendum shall govern the fee and time frames in which such consent
must be given for certain related matters; provided, however, that this addendum
(1) shall apply only as between the Master Servicer, on the one hand, and the
Primary Servicer, on the other, and (2) shall be subject in all respect to the
rights of the Special Servicer, the Trustee, the Certificate Administrator and
all other third parties under the Pooling and Servicing Agreement. Any conflict
between the provisions of this Fee, Timing, and Consent Addendum and the Pooling
and Servicing Agreement shall be resolved in favor of the Pooling and Servicing
Agreement. Capitalized terms used herein and not defined shall have the meaning
assigned to such terms in the Primary Servicing Agreement.
If the consent of the Master Servicer or Special Servicer is required for any
action contemplated within this Primary Servicing Agreement, the Primary
Servicer shall promptly prepare and provide to the Master Servicer or Special
Servicer, as applicable, notice of any Borrower request for approval of such
transaction, the Primary Servicer's recommendations and analysis and all
information reasonably available to the Primary Servicer that the Master
Servicer or Special Servicer may reasonably request in order to withhold or
grant any such consent. The Primary Servicer shall be entitled to contact the
Special Servicer directly in regard to any Borrower request for an approval of a
recommended course of action contemplated by Section 3.09 and Section 3.15 if
the Special Servicer is entitled to grant or withhold consent to such request
under the terms of the Pooling and Servicing Agreement.
Timing (Interaction with Master Servicer, if required pursuant to this
Agreement): Unless otherwise as set forth below, the Master Servicer has 5
Business Days to respond to the recommendation of the Primary Servicer from the
date of receipt. Failure of the Master Servicer to respond within the timeframes
specified above will be deemed a waiver of its right to consent and as such the
recommendation shall be deemed approved.
Timing (Interaction with the Special Servicer, if required pursuant to the
Pooling and Servicing Agreement): If the Special Servicer has not requested
additional information within four Business Days following the Special
Servicer's receipt of the Primary Servicer's recommendation and analysis,
consent to Primary Servicer's recommended course of action shall be deemed
granted if not expressly denied within 10 Business Days of Special Servicer's
initial receipt of Primary Servicer's recommendation and analysis. If the
Special Servicer has requested additional information on or before the date that
is four Business Days following the Special Servicer's initial receipt of the
Primary Servicer's recommendation and analysis, consent to the Primary
Servicer's recommended course of action shall be deemed granted if not expressly
denied within six Business Days following the Special Servicer's receipt of
additional information from Primary Servicer.
I. Assumption/Transfers
Reference:
o Section 3.09 of the Agreement
o Section 3.01(b)(iii) and 3.08 of the PSA;
Role: (1) Master Servicer hereby acknowledges the Primary Servicer has been
delegated all of the Master Servicer's rights and duties regarding assignment
and assumptions under the PSA. Primary Servicer shall provide the Special
Servicer with its recommendation and the appropriate back-up materials utilizing
the form noted in Exhibit L (or other form as required by the applicable Special
Servicer). A copy of the applicable recommendation, backup materials and other
documents shall be provided to the Master Servicer.
(2) Primary Servicer shall have the right to exercise the Master Servicer's
authority under the PSA to consent to any transfers of an interest of a Borrower
to the extent such transfer is allowed under the terms of the related Mortgage
Loan (without exercise of any lender approval or discretion other than
confirming the satisfaction of the other conditions to the transfer set forth in
the related Mortgage Loan Documents that do not include any other approval or
exercise of discretion), including any consent to transfer to any subsidiary or
Affiliate of the Borrower, to a Person acquiring less than a majority interest
in the Borrower.
(3) Primary Servicer shall have the right to consent to any transfers of an
interest of a Borrower of greater than 49% to the extent such transfer is
allowed under the terms of the related Mortgage Loan (without exercise of any
lender approval or discretion other than confirming the satisfaction of the
other conditions to the transfer set forth in the related Mortgage Loan
Documents that do not include any other approval or exercise of discretion),
including any consent to transfer to any subsidiary or Affiliate of the
Borrower; provided, however, that rating agency confirmation from each Rating
Agency will be required for any loan that meets one or more of the following
criteria:
o together with other loans that are cross-collateralized with, or
have the same or an affiliated Borrower as, such loan, represents 5%
or more of the aggregate principal balance of Pooled Mortgage Loans;
o together with other loans that are cross-collateralized with, or
have the same or an affiliated Borrower as, such loan, is one of the
ten largest Pooled Mortgage Loans (by Stated Principal Balance);
o together with other loans that are cross-collateralized with, or
have the same or an affiliated Borrower as, such loan, has a Cut-off
Date Principal Balance (contribution balance) in excess of $20
million.
(4) In no event shall the Primary Servicer approve any request for approval of a
Borrower interest unless such approval is consistent with the Servicing Standard
and the additional conditions set forth in Section 3.09(d), Section 3.09(h) and
Section 3.09(i) of this Agreement are satisfied.
o Fee: A maximum non-refundable processing fee of $3,000 will be
collected from the borrower. $1,000 of such fee shall be paid to the
Sub-Servicer and the remainder shall be divided in accordance with
Section XIII below. The processing fee shall be deducted from the
portion of any assumption fee (1% or other amount provided for in
the loan documents) remaining after deduction of the Special
Servicer's entitlement, if any, pursuant to the Pooling and
Servicing Agreement and this Agreement.
II. Leasing
Reference:
o Pursuant to Section 3.20(f)(iv) of the PSA;
Role: Master Servicer hereby acknowledges the Primary Servicer shall have the
right to exercise the Master Servicer's authority under the PSA to grant
consents involving routine leasing activities (other than SDNAs, which are
addressed in Section III below) that affect less than the greater of (a) 30% of
the net rentable area of the Mortgaged Property, or (b) 30,000 square feet of
the Mortgaged Property (the "Leasing Threshold"). Leases above the Leasing
Threshold shall require the consent of the Special Servicer.
Fee: No fee will be charged for a lease review for which lender must grant
consent under the mortgage loan documents. If lender consent is not mandated, a
maximum fee of $1,000 may be charged to Borrower. $250 of such fee shall be paid
to the Sub-Servicer and the remainder shall be divided in accordance with
Section XIII below.
III. SNDA
Reference:
o Pursuant to Section 3.20(f)(iv) of the PSA;
Role: Master Servicer hereby acknowledges the Primary Servicer shall have the
right to exercise the Master Servicer's authority under the PSA to negotiate and
enter into subordination and non-disturbance and attornment agreements ("SNDAs")
for leases at or below the Leasing Threshold. SNDA requests above the Leasing
Threshold shall require the consent of the Special Servicer.
Fee: No fee will be charged for a standard form SNDA, or one with nonmaterial
changes. For a non-standard SNDA form, a maximum fee of $1,000 may be charged to
the Borrower. $250 of such fee shall be paid to the Sub-Servicer and the
remainder shall be divided in accordance with Section XIII below.
IV. Partial Release of Collateral, including Condemnation
Reference:
o Pursuant to Section 3.20(f)(ii) of the PSA;
Role: Master Servicer hereby acknowledges that the Primary Servicer shall have
the right to exercise the Master Servicer's authority to approve releases of
non-material parcels of a Mortgaged Property (including, without limitation, any
such releases (A) to which the related Mortgage Loan Documents expressly require
the mortgagee thereunder to make such releases upon the satisfaction of certain
conditions (and the conditions to the release that are set forth in the related
Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the release set forth in the related Mortgage Loan Documents
that do not include any other approval or exercise)) and such release is made as
required by the related Mortgage Loan Documents or (B) that are related to any
condemnation action that is pending, or threatened in writing, and would affect
a non-material portion of the Mortgaged Property). The release of condemnation
proceeds shall be governed by Section VIII of this Addendum. All other partial
releases of collateral, including without limitation condemnations affecting any
material parcel or the use or value of the Mortgage Loan, shall require the
consent of the Master Servicer (if the PSA does not require the Special
Servicer's consent) or the Special Servicer (if the PSA requires the Special
Servicer's consent).
Fee: A non-refundable processing fee not to exceed $1,000 may be charged to the
Borrower. $250 of such fee shall be paid to the Sub-Servicer and the remainder
shall be divided in accordance with Section XIII below.
V. Easements
Reference:
o Pursuant to Section 3.20(f)(iii) of the PSA;
Role: Master Servicer hereby acknowledges the Primary Servicer shall have the
right to exercise the Master Servicer's authority under the PSA to grant
easements or rights of way that do not materially or adversely affect the use or
value of a Mortgaged Property or the Borrower's ability to make any
payments with respect to the related Mortgage Loan. All other easement requests
shall require the consent of the Special Servicer.
Fee: A non-refundable processing fee not to exceed $1,000 may be charged to the
Borrower. $250 of such fee shall be paid to the Sub-Servicer and the remainder
shall be divided in accordance with Section XIII below.
VI. Secondary Financing/ "Due-on-Encumbrance" Reference:
o Pursuant to Section 3.01(b)(iii) and 3.08 of the PSA;
Role:
The consent of the Master Servicer shall be required for any secondary financing
if (a) the transaction is permitted under the related Mortgage Loan Documents
and (b) the conditions to the transaction that are set forth in the related
Mortgage Loan Documents do not include the approval of the lender or the
exercise of lender discretion (other than confirming the satisfaction of the
other conditions to the transaction set forth in the related Mortgage Loan
Documents that do not include any other approval or exercise). All other
requests for subordinate financing or waiver of "due-on-encumbrance" provisions
shall require the consent of the Special Servicer.
In addition to the preceding paragraph, Rating Agency confirmation will be
required for any loan which meets one or more of the following criteria:
o represents 2% or more of the then aggregate principal balance of all
of the Pooled Mortgage Loans then in the Trust Fund;
o is one of the ten largest Pooled Mortgage Loans then in the Trust
Fund by principal balance;
o has an aggregate combined loan-to-value ratio (including existing
and proposed additional debt) that is equal to or greater than 85%;
o has an aggregate combined debt service coverage ratio (including the
debt service on the existing and proposed additional debt) that is
less than 1.2x.
Fee: A non-refundable processing fee not to exceed $1,000 may be charged to the
Borrower. $250 of such fee shall be paid to the Sub-Servicer and the remainder
shall be divided in accordance with Section XIII below.
VII. Defeasance
Reference:
o Pursuant to Section 3.01(b)(ii) and 3.19(d) and 3.20(a)(i) of the
PSA;
Role: Master Servicer hereby acknowledges the Primary Servicer shall have the
right to exercise the Master Servicer's authority to close defeasances of a loan
in accordance with terms of the related Mortgaged Loan Documents and the Pooling
and Servicing Agreement; provided, however, that (1) in no event shall such
defeasance be allowed on or before the second anniversary of the Closing Date;
(2) defeasance shall be allowed only in strict compliance with the related
Mortgage Loan Documents; and (3) the Primary Servicer will cause compliance with
the notice and, if applicable, rating agency confirmation requirements of
Section 3.19 of the Pooling and Servicing Agreement. Such requirements include:
o If any of the following conditions exist: (i) the Mortgaged Loan has
a Cut-off Date Principal Balance greater than or equal to
$35,000,000 or an outstanding principal balance greater than 2% of
the aggregate Stated Principal Balance of the Mortgage Pool; (ii)
the Mortgaged Loan is currently one of the top ten largest by Stated
Principal Balance; or (iii) the terms of the Mortgage Loan do not
permit the applicable Primary
Servicer to impose the requirements of Section 3.19(d)(i) through
(vi) of the Pooling and Servicing Agreement and the Primary Servicer
does not satisfy such requirements on its own; or (iv) the Primary
Servicer is unable to execute and deliver the certification attached
as Exhibit O to the Pooling and Servicing Agreement in connection
with the subject defeasance, then: the Primary Servicer shall notify
the Rating Agencies, the Controlling Class Representative and, if
any Mortgage Loan in a Serviced Mortgage Loan Group is involved, the
related Non-Pooled Mortgage Loan Noteholder(s) and, so long as such
a requirement would not violate applicable law or the Servicing
Standard, obtain a written confirmation from each Rating Agency for
the Rated Certificates that such defeasance will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates
rated by such Rating Agency.
The Primary Servicer shall notify the Master Servicer at the onset of a
defeasance request made by Borrower, and shall provide the Master Servicer
with copies of all applicable documents throughout the process, including
the items noted in Exhibit J of this Agreement. The Primary Servicer shall
deliver to each Rating Agency a certification substantially in the form as
Exhibit O attached to the PSA for loans that do not meet critieria (i) or
(ii) above.
Fee: As negotiated between Master Servicer and Primary Servicer.
VIII. Escrows, Letter of Credits, and Other Release of Funds
Reference:
o Pursuant to Section 3.03(d) and 3.20(f)(viii) of the PSA
Role: Master Servicer hereby acknowledges that the Primary Servicer shall have
the right to exercise the Master Servicer's authority to approve any releases or
reductions of or withdrawals from (as applicable) any Letters of Credit, Reserve
Funds or other Additional Collateral with respect to any Mortgaged Property in
amounts up to and including $250,000, where the release or reduction of or
withdrawal from (as applicable) the applicable Letter of Credit, Reserve Funds
or Additional Collateral is not conditioned on obtaining the consent of the
lender and the conditions to the release, reduction or withdrawal (as
applicable) that are set forth in the related Mortgage Loan Documents do not
include the approval of the lender or the exercise of lender discretion (other
than confirming the satisfaction of the other conditions to the transaction set
forth in the related Mortgage Loan Documents that do not include any other
approval or exercise). Any releases or reductions of or withdrawals from (as
applicable) any Letters of Credit, Reserve Funds or other Additional Collateral
with respect to any Mortgaged Property in amounts in excess of $250,000 and
which otherwise meet the preceding qualifications will require the consent of
the Master Servicer. All other requests for releases or reductions of or
withdrawals from (as applicable) any Letters of Credit, Reserve Funds or other
Additional Collateral shall require the consent of the Special Servicer.
All escrows will be held by the Primary Servicer with any interest earned on the
escrows either retained by the Primary Servicer or paid to the borrower as the
case may be. Releases from any escrows held for taxes and insurance do not
require consent of the Master Servicer or the Special Servicer if the release is
being used to pay tax or insurance ▇▇▇▇▇▇▇▇.
Fee: No fee will be charged for a release under this section.
IX. Payoffs
Role: Any prepayment quote, including any required prepayment premium, must be
forwarded to the Master Servicer for verification.
Timing (Interaction with Master Servicer): The Master Servicer has 2 Business
Days from the date the quote is provided by the Primary Servicer to confirm the
amount. Failure of the Master Servicer to respond to the Primary Servicer's
request within 2 Business Days shall be deemed a waiver of its right to verify
such prepayment quote.
Fee: No fee will be charged for pay off quotes.
X. Cash Management
Reference:
o Pursuant to Section 3.02(a) of the PSA;
Role: Master Servicer hereby acknowledges the Primary Servicer has been
delegated certain rights and duties of the PSA regarding the collection of all
payments required under the terms and provisions of the respective Serviced
Mortgage Loans it is obligated to service.
Timing:
o Sub-Servicer shall collect payments from borrower and, except in
connection with payoffs (principal prepayments, liquidations and
balloon payments), shall have 1 Business Day to remit such payments
to the Primary Servicer by way of ACH.
o Primary Servicer shall remit to the Master Servicer all payments
collected on the applicable Determination Date. Any payments
received by the Primary Servicer on or after the applicable
Determination Date shall be remitted to the Master Servicer within 1
Business Day following receipt by the Primary Servicer.
o Principal prepayments, liquidations, and balloon payments shall be
remitted to the Master Servicer on the day of receipt by the Primary
Servicer but no later than the next business day.
Fee: No fee will be charged with respect to cash management transactions.
XI. Property Manager
Reference:
o Pursuant to Section 3.20(f)(vii) of the PSA;
Role:
Master Servicer hereby acknowledges the Primary Servicer shall have the right to
exercise the Master Servicer's authority to approve a change of the property
manager at the request of the related Borrower provided the property is not a
hospitality property and either (A) the change occurs in connection with an
assignment and assumption approved in accordance with Section 3.08 of the PSA or
(B) the successor property manager is not affiliated with the Borrower and is a
nationally or regionally recognized manager of similar properties and the
related Serviced Pooled Mortgage Loan does not have a Stated Principal Balance
that is greater than or equal to $8,500,000 or 2% of the then aggregate Stated
Principal Balance of the Mortgaged Pool, whichever is less. All other property
management changes shall require the consent of the Special Servicer.
Fee: No fee will be charged with respect to cash management transactions
XII. Other Fees
o Subject to the Servicing Standard, the Primary Servicer or
Sub-Servicer will not be responsible for payment of any fees
required by the Master Servicer, Special Servicer or other party
that cannot be collected from the borrower under the terms of the
loan documents.
o Any other fees, including those received in the circumstances
described in this addendum, and in addition to those fees listed in
this addendum, will be allocated pursuant to the PSA and this
Agreement.
o The Primary Servicer acknowledges the Master Servicer shall be
entitled to the entire late charge collected from or on behalf of
any Borrower.
o No fees will be waived by the Master Servicer or the Primary
Servicer that are due to the Special Servicer under the PSA, without
the written consent of the Special Servicer.
XIII. Fee Split
Special Servicer involved in the request (if required by the PSA):
50% of total fees due to the Special Servicer (if set forth in the PSA)
Funds due to Sub-Servicer as indicated above
25% of remaining amount due to Master Servicer
25% of remaining amount due to Primary Servicer
No Special Servicer involvement with the request:
Funds due to Sub-Servicer as indicated above
50% of remaining amount due to Master Servicer
50% of remaining amount due to Primary Servicer
XIV. Non-cancellation of Primary Servicer and Sub-Servicer
Master Servicer and Special Servicer shall not have the right to terminate the
Primary Servicer except as set forth in Article XI of this Agreement.