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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
March 1, 2006
--------------------------------------------------------------------------------
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
Commercial Mortgage Pass-through Certificates
Series 2006-PWR11
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.........................................................................................1
ARTICLE II MASTER SERVICER'S ENGAGEMENT OF PRIMARY SERVICER TO PERFORM SERVICING RESPONSIBILITIES.............4
Section 2.01. Contract for Servicing; Possession of Mortgage Loan Documents..............................4
ARTICLE III SERVICING OF THE MORTGAGE LOANS...................................................................5
Section 3.01. Primary Servicer to Service................................................................5
Section 3.02. Collections................................................................................5
Section 3.03. Application of Funds in the Primary Certificate Account....................................8
Section 3.04. Servicing Standard; Servicing Duties.......................................................9
Section 3.05. Fidelity Bond and Errors and Omissions Insurance Policy Maintained by
the Primary Servicer...................................................................10
Section 3.06. Primary Servicer's General Power and Duties...............................................10
Section 3.07. Maintenance of Hazard Insurance, Other Insurance, Taxes and Other.........................13
Section 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due-On-Encumbrance Clause......15
Section 3.09. Servicing Compensation....................................................................17
Section 3.10. Primary Servicer Reports; Account Statements..............................................19
Section 3.11. [Reserved]................................................................................20
Section 3.12. Exchange Act Reporting and Regulation AB Compliance.......................................20
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...............................21
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.........................25
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. ............................................................28
Section 3.22. Transfer of Servicing.....................................................................28
Section 3.23. Primary Servicing Fee.....................................................................28
Section 3.24. Indemnification...........................................................................28
Section 3.25. Assumption or Termination by Trustee......................................................29
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TABLE OF CONTENTS
PAGE
Section 3.26. Trustee as Third Party Beneficiary........................................................29
Section 3.27. Purchaser Termination of Agreement........................................................29
Section 3.28. ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Performance Certification ERROR! BOOKMARK NOT DEFINED.
ARTICLE IV RESERVED..........................................................................................30
ARTICLE V DEFAULT............................................................................................38
Section 5.01. Events of Default.........................................................................38
Section 5.02. Waiver of Defaults........................................................................41
ARTICLE VI TERMINATION.......................................................................................41
Section 6.01. Termination...............................................................................41
Section 6.02. Termination with Cause....................................................................42
Section 6.03. Resignation of the Master Servicer........................................................42
ARTICLE VII MISCELLANEOUS....................................................................................42
Section 7.01. Successor to the Primary Servicer.........................................................42
Section 7.02. Records...................................................................................42
Section 7.03. Closing...................................................................................42
Section 7.04. Closing Documents.........................................................................43
Section 7.05. Notices...................................................................................43
Section 7.06. Severability Clause.......................................................................43
Section 7.07. Counterparts..............................................................................44
Section 7.08. Governing Law.............................................................................44
Section 7.09. Protection of Confidential Information....................................................44
Section 7.10. Intention of the Parties..................................................................44
Section 7.11. Successors and Assigns; Assignment of Agreement...........................................44
Section 7.12. Waivers and Amendments....................................................................44
Section 7.13. Exhibits..................................................................................45
Section 7.14. General Interpretive Principles...........................................................45
Section 7.15. Reproduction of Documents.................................................................45
Section 7.16. Further Agreement.........................................................................45
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TABLE OF CONTENTS
PAGE
EXHIBITS
EXHIBIT A POOLING AND SERVICING AGREEMENT
EXHIBIT B PRIMARY SERVICER'S OFFICER'S CERTIFICATE
EXHIBIT C MORTGAGE LOAN SCHEDULE
EXHIBIT D [RESERVED]
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 [RESERVED]
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 ADDENDUM
EXHIBIT R TIMING ADDENDUM
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PRIMARY SERVICING AGREEMENT
This Primary Servicing Agreement (the "Agreement"), 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, Sixth and Marquette Avenue, MAC
#N9303-121, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and its successors and assigns,
as master servicer (the "Master Servicer"), is dated as of March 1, 2006.
W I T N E S S E T H :
WHEREAS, BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC., as Depositor,
PRUDENTIAL ASSET RESOURCES, INC., as a Master Servicer, ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as a Master Servicer, ARCAP SERVICING, INC., as Special
Servicer, ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Certificate Administrator
and as Tax Administrator and LASALLE BANK NATIONAL ASSOCIATION, as Trustee have
entered into that certain Pooling and Servicing Agreement, dated as of March 1,
2006 (the "Pooling and Servicing Agreement" or "PSA"), whereby the Master
Servicer shall master service and the Special Servicer shall special service
certain multifamily and commercial mortgage loans identified on Schedules I-A
through I-D to the Pooling and Servicing Agreement on behalf of the Trustee; and
WHEREAS, the Master Servicer desires to enter into a contract with the
Primary Servicer whereby the Primary Servicer shall service certain of such
mortgage loans, identified on Exhibit C (the "Mortgage Loan Schedule") attached
hereto (the "Mortgage Loans"), on behalf of the Master Servicer. With respect to
the Primary Servicer, all references herein to the Mortgage Loans shall mean
those Mortgage Loans being serviced by the Primary Servicer and which are
governed by the PSA.
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
For purposes of this Agreement, 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 PWR11 Transaction or
the depositor with respect to an ABS Issuing Entity other than the PWR11 Trust.
"Certificateholders" shall the have meaning set forth in Section 2.01
hereof.
"Closing Date" shall have the meaning set forth in Section 2.01 hereof.
"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 first whereas clause
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 only from collections on such Mortgage Loan.
"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 4.01
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 second
whereas clause hereof.
"Mortgage Loans" shall have the meaning set forth in the second whereas
clause hereof.
"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.
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"Pooling and Servicing Agreement" shall have the meaning set forth in the
first whereas clause hereof.
"Primary Certificate Account Statement" shall have the meaning set forth
in clause (b) of Section 3.10 hereof.
"Primary Certificate Account" shall have the meaning set forth in clause
(a) of Section 3.02 hereof.
"Primary Servicer Remittance Date" shall have the meaning set forth in
clause (b) of Section 3.03 hereof.
"Primary Servicer Reporting Date" shall have the meaning set forth in
clause (b) of Section 3.03 hereof.
"Primary Servicer Determination Date" shall have the meaning set forth in
clause (b) of Section 3.03 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 3.23
hereof.
"Primary Servicing Fee Rate" shall have the meaning set forth in Section
3.23 hereof.
"PWR11 Transaction" means the transaction to which the Pooling and
Servicing Agreement relates.
"PWR11 Trust" means the ABS Issuing Entity to which the Pooling and
Servicing Agreement relates.
"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 3.03, 3.04,
3.07, 3.08, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15 and 3.16 of this Agreement.
"Significant Obligor for Unrelated Loans" means, with respect to the PWR11
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
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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 first whereas
clause hereof.
"Trustee" shall have the meaning set forth in the first whereas clause
hereof.
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF PRIMARY SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01. Contract for Servicing; Possession of Mortgage Loan Documents.
The Master Servicer, by execution and delivery of this Agreement, does
hereby contract with the Primary Servicer, subject to the terms of this
Agreement, for the servicing of the Mortgage Loans. On and after March 21, 2006
(the "Closing Date"), the Primary Servicer shall hold such Mortgage Loan
documents as are in the possession of said Primary Servicer in trust, on behalf
of the Master Servicer for the benefit of the Trustee and the holders of the
commercial mortgage pass-through certificates issued pursuant to the Pooling and
Servicing Agreement (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 copy 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.
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ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01. Primary Servicer to Service.
The Primary Servicer, as an independent contractor, shall service and
administer the Mortgage Loans in a manner consistent with the standards,
requirements, guidelines, procedures and restrictions imposed upon the Master
Servicer under Sections 3.01, 3.02, 3.03, 3.08, 3.11 and 3.20 of the Pooling and
Servicing Agreement. As described herein and unless otherwise specifically
provided in this Agreement, the Primary Servicer shall perform, on behalf of the
Master Servicer, all of the obligations of the Master Servicer with respect to
the Mortgage Loans as set forth in Sections 3.01, 3.02, 3.03, 3.08, 3.11 and
3.20 of the Pooling and Servicing Agreement and the Master Servicer shall have
the same rights with respect to the Primary Servicer that the Trustee, the
Sellers, the Depositor and the Certificateholders have with respect to the
Master Servicer under the Pooling and Servicing Agreement, except to the extent
otherwise set forth herein.
The addendum attached hereto as Exhibit R which addresses certain timing
and related matters (the "Timing 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 Timing Addendum shall be resolved in favor of the
Timing Addendum.
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. Under no circumstance shall the Primary Servicer make or have an
obligation to make any Advances.
Section 3.02. Collections.
(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, 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
2006-PWR11" (the "Primary Certificate Account").
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(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 3.02
(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 forward to the Master Servicer on the
Primary Servicer Remittance Date (as defined in Section 3.03(b)) the following
amounts received by it (provided that the Primary Servicer may retain amounts
otherwise payable to the Primary Servicer as provided in Section 3.03 (a) rather
than deposit them into the Primary Certificate Account):
(A) 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;
(B) Interest: all payments on account of interest on the
Mortgage Loans, including Default Interest and excess
interest, on the Mortgage Loans;
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans;
(D) 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;
(E) 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;
(F) Investment Losses: any amounts required to be deposited by
the Primary Servicer pursuant to Section 3.02 (e) in
connection with losses realized on Permitted Investments
with respect to funds held in the Primary Certificate
Account; and
(G) Other: all other amounts, including Late Fees, Prepayment
Premiums and Yield Maintenance Charges collected on or in
respect of the Mortgage Loans.
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(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 2006-PWR11." None of the
Depositor, the Borrowers or the Master Servicer shall be liable for any loss
incurred on such Permitted Investments.
An amount equal to all income and gain realized from any such Permitted
Investment shall be paid to the Primary Servicer as additional servicing
compensation and shall be subject to its 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. 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.
(e) 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 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.
(f) 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
these amounts in accordance with the Servicing Standard, the terms of the
Mortgage Loans and Section 3.06 (d) hereof, 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 Section 3.06 (d).
(g) With respect to each Mortgage Loan, if required by the terms of the
Mortgage Loan, any lock-box agreement or similar agreement, the Primary Servicer
shall establish and maintain, in accordance with the Servicing Standard, one or
more lock-box, cash management or similar accounts ("Lock-Box Accounts") to be
held outside the Trust and maintained by the Primary Servicer in accordance with
the terms of the Mortgage Loan. No Lock-Box Account is required to be an
Eligible Account, unless otherwise required pursuant to the Mortgage Loan
documents. The Primary Servicer shall apply the funds deposited in such accounts
in accordance with the terms of the Mortgage Loan documents, any lock-box
agreement and the Servicing Standard.
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Section 3.03. 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) Fees: the Primary Servicer shall pay to itself, pursuant to
Section 3.09, 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 3.15, and other fees payable
to the Primary Servicer hereunder;
(ii) Primary Servicing Fees and Excess Servicing Fees: to pay to
itself the Primary Servicing Fee and the Excess Servicing Fee;
(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.
(b) The Primary Servicer shall remit to the Master Servicer by wire
transfer of immediately available funds on the 5th Business Day prior to the
Distribution Date of each month (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 payoff funds (including, without limitation, Prepayment Premiums
and Yield Maintenance Charges) are to be remitted to the Master Servicer within
one (1) Business Day of Principal Prepayment or Balloon Payment.
The Primary Servicer shall deliver to the Master Servicer on the 5th
Business Day prior to the Distribution Date of each month (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 the CMSA Reports substantially in the form
8
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,
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 (and 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);
(2) in the case of any Monthly Payment either due during a Collection
Period or due after a Collection Period but on or before a Distribution Date but
received after the end of such Collection Period, 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;
(3) 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
(4) except as provided in paragraph (2) 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 3.04. Servicing Standard; Servicing Duties.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
the Primary Servicer shall service and administer the Mortgage Loans in
accordance with the Servicing Standard and the terms of this Agreement and the
PSA.
In connection with such servicing and administration, the Primary Servicer
shall service in accordance with the Servicing Standard; 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 as impairing or adversely affecting any rights or benefits
specifically provided by this Agreement to the Primary Servicer.
(b) The Primary Servicer shall send a written notice to the Master
Servicer within one (1) Business Day after becoming aware that a Servicing
Transfer Event has occurred with respect to a Mortgage Loan, which notice shall
identify the applicable Mortgage Loan and the Servicing Transfer Event that
occurred.
9
(c) 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.
(d) 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.
Section 3.05. Fidelity Bond and Errors and Omissions Insurance Policy Maintained
by the Primary Servicer. The Primary Servicer, at its expense, shall maintain in
effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Primary Servicer self
insures as provided below) and shall be in form and amount consistent with the
Servicing Standard and which includes the Master Servicer as a loss payee. In
the event that any such Servicer Errors and Omissions Insurance Policy or
Servicer Fidelity Bond ceases to be in effect, the Primary Servicer shall obtain
a comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Primary Servicer, is not in any event less than
"Baa2" by ▇▇▇▇▇'▇ and "A" by S&P or the equivalent ratings by at least two other
nationally recognized statistical rating organizations, the Primary Servicer may
self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions
Insurance Policy. 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 Insurance Policy as required by this section.
Section 3.06. Primary Servicer's General Power and Duties.
(a) The Primary Servicer shall not enter into any modifications,
waivers, amendments or consents with respect to a Mortgage Loan (other than
those "expressly permitted" as defined herein) or any instrument of satisfaction
or cancellation, or of full release or discharge with respect to any Mortgage
Loan without the prior written consent of the Master Servicer and, if
applicable, the consent or deemed consent of the Special Servicer as set forth
in the Pooling and Servicing Agreement..
(b) 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 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.
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(c) 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, 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.
(d) 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 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 2006-PWR11" (each such account, an "Escrow Account").
(e) 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 3.06
(d), subject to the Primary Servicer's right to direct payments and investments
and its rights of withdrawal under this Agreement.
(f) 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 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:
(i) to effect timely payments of items constituting Escrow
Payments for the Mortgage Loan;
(ii) to transfer funds to the Master Servicer's Collection
Account to reimburse the Master Servicer for any Advance relating to
Escrow Payments, but only from
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amounts received with respect to the Mortgage Loan which represent late
collections of Escrow Payments thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) 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; and
(vi) to remove any funds deposited in a Escrow Account that were
not required to be deposited therein or to refund amounts to the Borrowers
determined to be overages.
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. 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
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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. If the
Primary Servicer is required under this Agreement to make payments or
disbursements to third parties (such as tax or insurance payments) on behalf of
a Borrower from funds held by or maintained under the control of the Primary
Servicer hereunder on behalf of such Borrower, such payment or disbursement
shall be made on or before the related penalty or expiration dates, as indicated
on the appropriate bills or notices for such payments, provided that such
support has been received by the Primary Servicer at least 30 calendar days
prior to these dates. 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. 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.
(g) 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.
(h) The Primary Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Borrower under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after receipt of
the related Servicer Mortgage File by the Primary Servicer, the Seller has
notified the related ground lessor of the transfer of such Mortgage Loan to the
Trust pursuant to the PSA and informed such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
Master Servicer (as evidenced by delivery of a copy thereof to the Master
Servicer). The Primary Servicer shall promptly notify the ground lessor if the
Seller has failed to do so by the thirtieth day after the Closing Date.
(i) The Primary Servicer shall not waive any late fees or default
interest without the prior written consent of the Master Servicer.
Section 3.07. Maintenance of Hazard Insurance, Other Insurance, Taxes and Other.
(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 for each Mortgaged Property (other than any REO
Property) (A) a Standard Hazard 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, (B)
any terrorism insurance coverage for a Mortgage Loan, which the related Borrower
is required to maintain under the related Mortgage, to the extent that such
insurance is available at a commercially reasonable rate and (C) any other
insurance coverage for a Mortgage Loan which the related Borrower is required to
maintain under the related Mortgage, provided, the Primary Servicer shall not be
required to maintain earthquake insurance on any Mortgaged Property required by
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the related Mortgage unless such insurance was required at origination and is
available at a commercially reasonable rate. If the related Borrower does not
maintain the insurance set forth in clauses (A), (B) and (C) above, then the
Primary Servicer shall cause to be maintained such insurance with a Qualified
Insurer.
(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 consent 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).
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If, on the
date of origination, the improvements on the Mortgaged Property are located in a
designated special flood hazard area by the Federal Emergency Management Agency
in the Federal Register, as amended from time to time (to the extent permitted
under the related Mortgage Loan or as required by law), the Primary Servicer
(with respect to any Mortgaged Property that is not an REO Property) shall cause
flood insurance to be maintained. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan or (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program, if the area in
which the improvements on the Mortgaged Property are located is participating in
such program. Any amounts collected by the Primary Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Borrower in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Primary Certificate Account.
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 insurance pursuant to this Section 3.07 shall not,
for the purpose of calculating remittances to the Master Servicer for their
benefit, be added to the Principal Balance of the Mortgage Loan, notwithstanding
that the terms of the Mortgage Loan permit such cost to be added to the
outstanding Principal Balance thereof. Such costs shall be paid by the Primary
Servicer which shall be reimbursed by Master Servicer within two (2) Business
Days upon receipt of evidence of any such costs.
Notwithstanding the above, the Primary Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Primary Servicer shall not
be required in any event to maintain
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or obtain insurance coverage to the extent the Trustee as mortgagee does not
have an insurable interest or beyond what is reasonably available at a
commercially reasonable rate and consistent with the Servicing Standard. The
Primary Servicer shall notify the Trustee in the event it makes such
determination.
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 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
except in the case of Mortgage Loans under which Escrow Payments are not held by
the Primary Servicer, (i) obtain all bills for the payment of such items
(including renewal premiums), and (ii) 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.
(c) 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 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.
Section 3.08. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause.
(a) 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 or entity 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). With respect to each Mortgage Loan that
does not "expressly permit" an assignment and assumption, if the Primary
Servicer recommends to approve such assignment, the Primary Servicer shall
provide to the Master Servicer and the Special Servicer a copy of such
recommendation and the materials upon which such recommendation is based (which
information shall consist of the information to
15
be included in the Assignment and Assumption Submission to the Special Servicer,
in the form attached hereto as Exhibit L) and the Primary Servicer shall, on
behalf of the Master Servicer, obtain the Special Servicer's consent in
accordance with Section 3.20 of the Pooling and Servicing Agreement before the
completion of such assignment and assumption.
Upon consent or deemed consent the Special Servicer to such proposed
assignment and assumption, or in the case where the Master Servicer and/or
Special Servicer consent is not required, the Primary Servicer shall process
such request of the related Borrower and shall be authorized to enter into an
assignment and assumption or substitution agreement with the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed, and/or
release the original Borrower from liability under the related Mortgage Loan or
Serviced Non-Pooled Mortgage Loan and substitute as obligor thereunder the
Person to whom the related Mortgaged Property has been or is proposed to be
conveyed. To the extent permitted by applicable law, the Primary Servicer shall
not enter into such an assumption or substitution agreement unless the credit
status of the prospective new Borrower is in conformity to the terms of the
related Mortgage Loan documents, Serviced Non-Pooled Mortgage Loan or
Intercreditor Agreement. The Primary Servicer shall notify the Master Servicer,
the Trustee, the Certificate Administrator and the Special Servicer of any
assignment and assumption or substitution agreement executed pursuant to this
Section 3.08. As additional servicing compensation, the Master Servicer, the
Primary Servicer and the Special Servicer will be entitled, in accordance with
Section 3.09, to any assumption fees collected from a Borrower in connection
with an assignment and assumption or substitution executed pursuant to this
Section 3.08.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not 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, 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 its recommendation to the
Master Servicer. The review and determination to either (i) enforce such due-
on-sale clause or (ii) if in the best economic interest of the Trust, waive the
effect of such provision, shall be processed in the same manner as described
above; provided, however, that if the Principal Balance of such Mortgage Loan at
such time equals or exceeds 5% of the Aggregate Certificate Balance or is one of
the then current top 10 loans (by Principal Balance) in the pool, then prior to
waiving the effect of such provision, the Master Servicer shall obtain Rating
Agency Confirmation regarding such waiver.
(c) The Master 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; provided, however, that if (i) the affected
Serviced 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
16
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 Rated Certificates, the costs of which to be payable by
the related Borrower to the extent provided for in the Mortgage Loan documents.
(d) In the event that the Primary Servicer receives a request for a
waiver of any "due on-encumbrance" 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 creation of any
additional lien or other encumbrance on the related Mortgaged Property or
a lien on the ownership interest in the Borrower; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
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).
(e) The Primary Servicer shall be entitled to contact the Special
Servicer directly in accordance with the Pooling and Servicing Agreement in
regard to any request received from Borrower relating to the provisions of this
Section 3.08 of the Agreement and the Master Servicer hereby acknowledges the
delegation certain of its rights and duties as set forth under Section 3.22 of
the Pooling and Servicing Agreement and as specifically set forth herein.
(f) 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 Mortgage Loan Purchase Agreements, 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 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 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.
Section 3.09. Servicing Compensation. 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 Certificate Accounts
and the Escrow Accounts, with respect to the Mortgage Loans, shall be accounts
maintained by the Primary Servicer and the interest and investment income
17
realized with respect to the Mortgage Loans thereon shall be for the exclusive
benefit of the Primary Servicer, unless the Mortgage Loan documents require that
such interest or other income shall be paid to the Borrower. In addition, the
Primary Servicer shall be entitled to any Borrower-paid administration fees
associated with any Reserve Account maintained by the Primary Servicer.
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.
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:
100% of the earnings on the accounts held by the Primary Servicer,
including the Escrow Accounts, and the Primary Certificate Account, to the
extent not required to be paid by any Borrower.
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.
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.
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. 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. Notwithstanding the preceding provisions of
this Section 3.09, 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
18
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. The Primary Servicer shall
also be entitled to a portion of any late charges collected from or on
behalf of any Borrower after application to any advance interest due to the
Trust, on a "loan-by-loan" basis. The fee addendum hereto as Exhibit Q (the "Fee
Addendum") is hereby incorporated by reference as if fully set forth herein. Any
conflict between the provisions of this Agreement and the Fee Addendum shall be
resolved in favor of the Fee Addendum.
Section 3.10. 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 3.03(b) above. The Primary
Servicer shall also be required to provide a Remittance Report within one (1)
Business Day of a loan payoff pursuant to Section 3.03(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 deliver to the Master Servicer, within 30
days following each Primary Servicer Reporting Date, a statement (each, a
"Primary Certificate Account Statement") setting forth the status of the Primary
Certificate Account and any other bank accounts associated with this Agreement
as of the close of business on such Primary Servicer Reporting Date showing, for
the period covered by such statement, the aggregate of deposits in or
withdrawals from the Primary Certificate Account. Each Primary Certificate
Account Statement shall attach a copy of a bank account statement for such
Primary Certificate Account and such period.
(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
each Primary Servicer Reporting Date, commencing in April 2006; (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 3.10 (d) below
on each Primary Servicer Reporting Date, commencing in April 2006; (iv) a Loan
Periodic Update File not later than each Primary Servicer Reporting Date,
commencing in April 2006; (vi) a Property File not later than each Primary
Servicer Reporting Date, commencing in April 2006; (vii) a Delinquent Loan
Status Report not later than each Primary Servicer Reporting Date (commencing in
April 2006) and (viii) a Loan Level Reserve Report not later than each Primary
Servicer Reporting Date (commencing in April 2006).
(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-
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Pooled Mortgage Loan), not later than the Primary Servicer Reporting Date, a
Servicer Watch List.
(e) If the Primary Servicer delivers to the Master Servicer a notice of
drawing to effect a drawing on any letter of credit or debt service reserve
account under which the Trust has rights as the holder of any Mortgage Loan for
purposes other than payment or reimbursement of amounts contemplated in and by a
reserve or escrow agreement (other than after a default under an applicable
Mortgage Loan), the Master Servicer shall, within five (5) Business Days
following its receipt of the proceeds of such drawing, deliver notice thereof to
the Special Servicer and the Certificate Administrator, which notice shall set
forth (i) the unpaid Principal Balance of such Mortgage Loan immediately before
and immediately after the drawing, and (ii) a brief description of the
circumstances that in the Master Servicer's good faith, reasonable judgment and
in compliance with the Servicing Standard entitled the Master Servicer to make
such drawing.
(f) To the extent that the Master Servicer is required to deliver
additional information under the Pooling and Servicing Agreement relating to the
information provided to the Master Servicer by the Primary Servicer in Exhibits
E, F and G, the Primary Servicer shall use reasonable efforts consistent with
the Servicing Standard to supply such additional information to the Master
Servicer.
(g) 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 the Primary Servicer Reporting Date occurring
in each such month.
(h) On or before the first anniversary of the Closing Date, the Primary
Servicer shall deliver to the Master Servicer a report, in the form attached
hereto as Exhibit O, which identifies with respect to each Mortgage Loan that
requires reserve payments as of the Closing Date and for which the required
actions relating to such reserve payments which are escrowed have not been
completed by such first anniversary: (i) the amount of reserve payments as of
the Closing Date, (ii) the amount of reserve payments remaining on the date of
the reporting, (iii) reserve type, (iv) the expiration date by which the work
must be completed and (v) the status of such work. If the work or project is not
completed in accordance with the requirements of the escrow, including, without
limitation, within the required timeframe, the Primary Servicer shall notify the
Master Servicer within five (5) Business Days of such non-compliance. The
Primary Servicer shall provide additional information in connection with such
work or project to the Master Servicer upon request.
Section 3.11. [Reserved].
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.
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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, for the quarter ending on March 31, 2006, the Primary Servicer shall
deliver to the Master Servicer an Operating Statement Analysis Report and a
Financial File for each Mortgaged Property in electronic format, prepared using
the non normalized 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 the May 15 of each year, beginning in 2007 for year-end 2006, 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 and inspections
collected with respect to the Mortgaged Properties shall be delivered by the
Primary Servicer to the Master Servicer within 25 days following receipt
thereof.
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 2006, or every second calendar year beginning in 2006 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 Pooled
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 2006 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 (20)
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 (a
"Rehabilitated Mortgage Loan"), the provisions of this Section 3.14 shall once
again apply to the Primary Servicer with respect to such Rehabilitated Mortgage
Loan.
Section 3.15. Modifications, Waivers, Amendments, Extensions and Consents. 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) regarding (a) any term of a Mortgage Loan that is not a Specially Serviced
Mortgage Loan or (b) any request by a Borrower (including any request for
consent, as more fully detailed below or any modification or waiver, as more
fully described below, the Primary Servicer shall obtain relevant information
for purposes of evaluating such request. The Primary Servicer shall provide the
Master Servicer with a written
21
case including its recommendation with respect to such matter and the materials
upon which such recommendation is based and shall prepare such documents as are
necessary to process such request.
(a) (i) The Master Servicer, in accordance with the Servicing
Standard, may agree to any modification, waiver, amendment or consent of or
relating to any term (including, without limitation any matter set forth in
Section 3.20(f) of the Pooling and Servicing Agreement that the Master Servicer
is entitled to take without the consent of the Special Servicer ("Master
Servicer Consent Matters")) other than a Money Term of a Mortgage Loan or a
Serviced Non-Pooled Mortgage Loan that is not a Specially Serviced Mortgage
Loan, provided that such amendment would not result in an Adverse REMIC Event;
and provided, further, that if any consent relates to a release of a letter of
credit relating to any Mortgage Loan (other than letters of credit or portions
thereof released upon satisfaction of conditions specified in the related
agreements), then (i) the Master Servicer shall notify the Special Servicer of
any Borrower's request to release such letter of credit which the Master
Servicer recommends to release, and (ii) if the terms of the related Mortgage
Loan do not require the Master Servicer to approve a release, then the Special
Servicer shall within five Business Days provide notice to the Master Servicer
on whether the Master Servicer should approve the release (and the failure of
the Special Servicer to give the Master Servicer such notice shall automatically
be deemed to be an approval by the Special Servicer that the Master Servicer
should grant such release). Notwithstanding the preceding sentence, if the
Master Servicer recommends to approve a modification, waiver, amendment or
consent which is not a Master Servicer Consent Matter (including, without
limitation, any waiver of any requirement that the Borrower post additional
reserves or a letter of credit upon the failure of the Borrower to satisfy
conditions specified in the Mortgage Loan documents), the Master Servicer shall
provide to the Special Servicer a copy of the Master Servicer's recommendation
and the relevant information obtained or prepared by the Master Servicer in
connection therewith and all other information reasonably requested by the
Special Servicer, provided, that (A) the Special Servicer shall have the right
hereunder to grant or withhold consent to any such proposed modification,
waiver, amendment or consent, and the Special Servicer shall not unreasonably
withhold such consent and any such decision shall be in accordance with the
Servicing Standard, (B) any such consent shall be deemed to have been granted if
such consent has not been expressly denied either (x) within ten Business Days
of the Special Servicer's initial receipt of the applicable Master Servicer's
recommendations and analysis, if the Special Servicer has not requested
additional information as described above on or before the date that is four
Business Days following the Special Servicer's receipt of the applicable Master
Servicer's recommendations and analysis, or (y) within six Business Days
following the Special Servicer's receipt of the additional information requested
by the Special Servicer as described above, if the Special Servicer has
requested such additional information on or before the date that is four
Business Days following the Special Servicer's initial receipt of the applicable
Master Servicer's recommendations and analysis and (C) the Master Servicer shall
not enter into any such proposed modification, waiver, amendment or consent
unless it has received the written consent of the Special Servicer or such
consent has been deemed to have been granted as described above. Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not be
required to obtain or request the consent of the Special Servicer in connection
with any modification, waiver or amendment, or granting its consent to
transactions, under one or more of the Mortgage Loans that in each case the
Master Servicer has determined (in accordance with the Servicing Standard) is
immaterial. In any event, the Master Servicer shall promptly notify the Special
Servicer of any material modification, waiver, amendment or
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consent executed by the Master Servicer pursuant to this Section 3.15 (a)(i) and
provide to the Special Servicer a copy thereof. Notwithstanding the foregoing
provisions of this Section 3.15, if the Mortgage Loan documents do not preclude
imposition of a requirement to or require a Borrower to pay a fee for an
assumption, modification, waiver, amendment or consent that would be due or
partially due to the Special Servicer, then the Master Servicer shall not waive
the portion of such fee due to the Special Servicer without the Special
Servicer's approval. In addition to the prior sentence and with respect to the
fees mentioned therein, the Primary Servicer shall not waive any of such fees
due to the Master Servicer or the Special Servicer without such party's written
consent. Notwithstanding anything to the contrary contained herein, the Primary
Servicer shall be entitled to submit any such request directly to the Special
Servicer in accordance with the PSA.
(ii) In the event the Primary Servicer receives a request from a
Borrower to extend the maturity date of any Balloon Mortgage that is not a
Specially Serviced Mortgage Loan to a date that is not more than 90 days
following the original maturity date, the Primary Servicer shall obtain
relevant information for evaluating such request. The Primary Servicer
shall provide to the Special Servicer and the Master Servicer a copy of
its written case with respect to such matter, along with copies of the
materials upon such recommendation is based. The Master Servicer may, with
or without the consent of the Special Servicer, approve such an extension
if, in the Master Servicer's sole judgment exercised in good faith and
based upon its evaluation of the recommendation of the Primary Servicer, a
default in the payment of the Balloon Payment is reasonably foreseeable
and such extension is reasonably likely to produce a greater recovery to
the Holders on a net present value basis than liquidation of such Mortgage
Loan and the Borrower has obtained an executed written commitment (subject
only to satisfaction of conditions set forth therein) for refinancing of
the Mortgage Loan or purchase of the related Mortgaged Property. Upon
receipt of written approval or consent from the Master Servicer, Primary
Servicer shall prepare such documents as are necessary to process such
request and provide the documents to the Master Servicer for signature.
Any extension fees collected from a Borrower with respect to any such
extension shall be divided between the Master Servicer and the Primary
Servicer, each receiving fifty percent (50%) as additional servicing
compensation.
(b) If the Mortgage Loan documents relating to a Mortgage Loan provide
that certain conditions must be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related release, reduction or termination is no greater than the
smaller of 10% of the outstanding unpaid Principal Balance of the related
Mortgage Loan or $75,000, (2) the condition to be waived is deemed to be non-
material in accordance with the Servicing Standard or (3) such release,
reduction or termination would not otherwise cause an Adverse REMIC Event.
Notwithstanding the foregoing, without the Special Servicer's consent or except
as provided in the specific Mortgage Loan documents, the Master Servicer shall
not waive: (1) a requirement for any such additional collateral to exist, or (2)
a lock box requirement.
(c) The Master Servicer shall not require a Rating Agency Confirmation
in connection with this Agreement unless the terms of the PSA specifically
require the Master
23
Servicer to do so, and if so required by the terms of the PSA, the Master
Servicer shall not be permitted to waive (i) the Rating Agency Confirmation
requirement or (ii) the obligation of a Borrower to pay all or any portion of
any fee payable in connection with obtaining the Rating Agency Confirmation.
(d) If a Borrower requests to defease a Mortgage Loan (other than a
Specially Serviced Mortgage Loan) and the Mortgage Loan Documents for such
Mortgage Loan expressly provide for a defeasance, Primary Servicer shall seek
the prior written consent of Master Servicer prior to consenting to such
defeasance, which consent shall not be withheld or delayed unreasonably when
Primary Servicer submits to Master Servicer the items substantially as set forth
on Exhibit J to this Agreement relating to such defeasance.
(e) The Primary Servicer shall be entitled to contact the Special
Servicer directly in regard to any request received from Borrower relating to
the provisions of this Section 3.15 of the Agreement if the Special Servicer is
entitled to grant or withhold consent to such request under the terms of the
Pooling and Servicing Agreement.
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
Master 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 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.
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 Code Section
860F(a)(2) 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.
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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:
(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,
25
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.
(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.
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 respective duties under this Agreement.
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
26
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 and subsequently reimbursed by the Trust pursuant to Section
4.6 of 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 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. Subject to the next sentence relating to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, the Primary Servicer represents that each
sub-servicer with which it has entered into a sub-servicing agreement as of or
before the Closing Date does not, in light of the nature of the services
performed and the terms and conditions of the subservicing 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 and the Primary Servicer
shall not enter into a subservicing agreement, and the same shall be true with
respect to any subservicer engaged by the Primary Servicer after the Closing
Date. Notwithstanding the preceding sentence, with respect to ▇▇▇▇▇▇▇▇ Fernoglio
▇▇▇▇▇▇, ▇▇ the Primary Servicer represents that is has contractually obligated
such subservicer, at all times during such entity's tenure as subservicer, to
deliver (annually not later than the date when the Primary Servicer is required
to deliver analogous documents hereunder) the documents
27
described in Items 1122(a), 1122(b) and 1123 under Regulation AB (even if not
actually then required under Regulation AB).
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. Transfer 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) each
of the Rating Agencies confirms in writing that none of the ratings on any Class
of Certificates then outstanding will be qualified, withdrawn or downgraded as a
result of such successor serving as Primary Servicer hereunder, 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. Primary Servicing Fee. 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. The Primary Servicer shall be
entitled to retain as additional servicing compensation all other amounts
specified in this Agreement, including without limitation those amounts
specified in Section 3.09 of this Agreement.
Section 3.24. 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
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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 two sentences of Section
3.20 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 3.25. 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 that
the Primary Servicer is not in default under this Agreement, as a condition
precedent to its becoming successor Master Servicer.
Section 3.26. Third Party Beneficiaries. The Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under this Agreement.
However, except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer, none of the Trust Fund, the Trustee, any
successor Master Servicer (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 3.27. 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.
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Section 3.28. 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.
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 and certification requirements required 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 foregoing requirements shall be
subject to Section 4.01(b) through Section 4.01(h), which in certain cases shall
limit and in certain cases shall expand the requirements to be complied with by
the Primary Servicer pursuant to the preceding sentence.
(b) Filing Obligations - General. The Primary Servicer shall
cooperate with the Master Servicer, the Paying Agent, 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.
With respect to each ABS Issuing Entity, the Primary Servicer shall comply with
the following provisions of this Section 4.01(c) in furtherance of Section
4.01(a) and the Pooling and Servicing Agreement
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provisions identified below (and, unless the Master Servicer reasonably advises
the Primary Servicer (on a going-forward basis) that additional deliveries are
required, such compliance by the Primary Servicer shall satisfy the Primary
Servicer's requirements under Section 4.01(a) with respect to such Pooling and
Servicing Agreement provisions):
(i) Form 8-K Information. In furtherance of Section 11.7
of the Pooling and Servicing Agreement, with respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than one Business Day after the Primary Servicer
becomes aware of the occurrence of any event described below, the Primary
Servicer shall deliver to the Master Servicer a report (a "Primary
Servicer Form 8-K Information Report") setting forth the information
specified below with respect to such event (to the extent that such
information relates to the Primary Servicer or to the mortgage loans
serviced by the Primary Servicer hereunder):
(A) In connection with the termination or
expiration, or the amendment of any provisions, of a material
sub-subservicing agreement:
(1) the date of termination of the agreement,
the identity of the parties to the agreement, and a brief
description of any material relationship between the Primary
Servicer or its affiliates and any of the parties other than
in respect of the agreement;
(2) a brief description of the terms and
conditions of the agreement that are material to the Primary
Servicer;
(3) a brief description of the material
circumstances surrounding the termination; and
(4) any material early termination penalties
incurred by the Primary Servicer.
(B) In connection with any instance of a bankruptcy
or insolvency proceeding involving the Primary Servicer:
(1) the name or other identification of the
proceeding; and
(2) the date on which (x) jurisdiction was
assumed by a court or governmental authority over the assets
or business of the Primary Servicer or (y) any order
confirming a plan of reorganization, arrangement or
liquidation of the Primary Servicer; and
(3) such other information as the Master
Servicer may reasonably request of the Primary Servicer with
respect to such bankruptcy or insolvency proceeding (the
purpose of such information being to enable the Master
Servicer and/or the Depositor to be responsive to the
informational requirements of Item 1.03 of Form 8-K).
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(C) In connection with the resignation, removal,
replacement or substitution of a sub-Primary Servicer of the Primary
Servicer, or the appointment of a new such sub-Primary Servicer:
(1) the date on which the event occurred and
the circumstances surrounding the change; and
(2) the material terms regarding such
resignation, removal, replacement or substitution, including
(I) provisions for selecting a successor sub-Primary
Servicer and financial or other requirements that must be
met by a successor sub-Primary Servicer, (II) the process
for transferring servicing to a successor sub-Primary
Servicer and (III) provisions for payment of expenses
associated with the servicing transfer and any additional
fees charged by a successor sub-Primary Servicer (specifying
the amount of any funds set aside for such servicing
transfer); and
(3) such other information as the Master
Servicer may reasonably request of the Primary Servicer with
respect to such resignation, removal, replacement or
substitution (the purpose of such information being to
enable the Master Servicer and/or the Depositor to be
responsive to the informational requirements of Item 6.02 of
Form 8-K);
provided, however, that to the extent that any information called
for by this Section 4.01(c)(i)(C) regarding such sub-Primary
Servicer is not determined or is unavailable at the time of the Form
8-K filing as to which such information applies, the Primary
Servicer shall include a statement to this effect in the Primary
Servicer Form 8-K Information Report and then must deliver an
amendment to such report containing the undetermined or unavailable
information within one Business Day after such information is
determined or becomes available.
(ii) Form 10-D Information. In furtherance of Section 11.6
of the Pooling and Servicing Agreement, with respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than the date in each month when the Primary
Servicer is required to deliver to the Master Servicer the CMSA Loan
Periodic Update File under the other provisions of this Agreement, the
Primary Servicer shall deliver to the Master Servicer a report (a "Primary
Servicer Form 10-D Information Report") setting forth the information
specified below relating to the Distribution Date occurring in such month,
to the extent that such information relates to the Primary Servicer or to
the mortgage loans serviced by the Primary Servicer hereunder:
(A) a description of (x) any material legal
proceedings that involve the Primary Servicer or to which any of its
property is subject or (y) any changes in the status of such legal
proceedings;
(B) [reserved];
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(C) any change in how the Primary Servicer defines
or determines delinquencies, charge-offs and uncollectible accounts
with respect to the mortgage loans serviced by the Primary Servicer
hereunder, addressing the effect of any grace period, reaging,
restructure, partial payments considered current or other practices
on delinquency in loss experience;
(D) any other material information regarding
delinquencies and losses specific to the asset type represented by
the mortgage loans serviced by the Primary Servicer, such as
repossession information, foreclosure information and real estate
owned (REO) or similar information;
(E) information as to the mortgage loans serviced by
the Primary Servicer (such interest rate information to be provided
for such mortgage loans, if applicable in appropriate distributional
groups or incremental ranges);
(F) information as to beginning and ending balances
of transaction accounts, such as reserve accounts, and material
account activity during the relevant period; and
(G) such other information as the Master Servicer
may reasonably request of the Primary Servicer (the purpose of such
information being to enable the Master Servicer and/or the Depositor
to be responsive to the informational requirements of Form 10-D).
(iii) Form 10-K Information (Other than Annual Compliance
Information). In furtherance of Section 11.7 of the Pooling and Servicing
Agreement, with respect to each ABS Issuing Entity (for so long as it is
subject to Exchange Act reporting requirements), not later than March 1 of
each year, the Primary Servicer shall deliver to the Master Servicer a
report (a "Primary Servicer Form 10-K Information Report") setting forth
the information specified below (excluding any report regarding its
assessment of compliance, any report by a registered public accounting
firm that attests to and reports on such assessment report, and any
statement of compliance, which reports and statements shall be governed by
Section 4.01(c)(iv)), to the extent such information relates to the most
recently ended calendar year and to the Primary Servicer or the mortgage
loans serviced by the Primary Servicer hereunder:
(A) a description of (x) any material legal
proceedings that involve the Primary Servicer or to which any of its
property is subject or (y) any changes in the status of such legal
proceedings;
(B) [reserved];
(C) the following descriptions of affiliations:
(I) a description of the existence and nature
of any affiliation between the Primary Servicer, on the one
hand, and (u) the Trustee, (v) a 20% Servicer, (w) an
Originator or (x) a Significant Obligor for Unrelated Loans,
on the other hand; and
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(II) a description of the existence and
character of any relationship, agreement, arrangement,
transaction or understanding between the Primary Servicer or
any affiliate of the Primary Servicer, on the one hand, and
any of the persons described in clause (u) through clause
(z) of Section 4.01(c)(iii)(C)(I), on the other hand.
(iv) Annual Compliance Information. Not later than March 1
of each year, the Primary Servicer shall deliver to the Master Servicer
the following reports and certifications:
(A) In furtherance of the first paragraph of Section
11.10 of the Pooling and Servicing Agreement, a report regarding the
Primary Servicer's assessment of compliance with the Relevant
Servicing Criteria, as of and for the period ending the end of the
prior calendar year, with respect to asset-backed securities
transactions taken as a whole that are backed by the same asset type
as that included in the PWR11 Transaction, which report of
assessment shall contain the following:
(I) a statement of the Primary Servicer's
responsibility for assessing compliance with the Relevant
Servicing Criteria;
(II) a statement that the Primary Servicer used
the Servicing Criteria to assess compliance with the
Relevant Servicing Criteria;
(III) the Primary Servicer's assessment of
compliance with the Relevant Servicing Criteria as of and for the
period ending the end of the prior calendar year (such assessment to
include (y) disclosure of any material instance of noncompliance
identified by the Primary Servicer with respect to the Relevant
Servicing Criteria and (z) a discussion of the nature and status of
each such instance of noncompliance); and
(IV) a statement that a registered public
accounting firm has issued an attestation report on the Primary
Servicer's assessment of compliance with the Relevant Servicing
Criteria as of and for the period ending the end of the prior
calendar year;
(B) In furtherance of the first paragraph of Section
11.11 of the Pooling and Servicing Agreement, a report by a
registered public accounting firm that attests to, and reports on,
the assessment described in the preceding clause (A), which report
shall be made in a manner that conform or would conform to the
standards for attestation engagements issued or adopted by the
Public Company Accounting Oversight Board and would conforms to the
requirements of Item 1122(b) and Item 1122(c)(1) of Regulation AB;
(C) In furtherance of the first sentence of Section
11.9 of the Pooling and Servicing Agreement, a statement of
compliance from the Primary
34
Servicer signed by an authorized officer of the Primary Servicer, to
the effect that: (a) a review of the Primary Servicer's activities
during the then most-recently ended calendar year and of its
performance under this Agreement has been made under such officer's
supervision and (b) to the best of such officer's knowledge, based
on such review, the servicer has fulfilled all of its obligations
under this Agreement in all material respects throughout the then
most-recently ended calendar year or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status
thereof. The Primary Servicer shall cooperate with the Depositor
with respect to any consultation described in Section 11.9 of the
Pooling and Servicing Agreement and shall cooperate with the master
servicer and any other Applicable Depositor under any comparable
provision of the pooling and servicing agreement with respect to any
other ABS Issuing Entity; and
(D) such other information as the Master Servicer
may reasonably request of the Primary Servicer (the purpose of such
information being to enable the Master Servicer and/or the Depositor
to be responsive to the informational requirements of Form 10-K).
With respect to subservicers other than ▇▇▇▇▇▇▇▇ Fernoglio ▇▇▇▇▇▇,
▇▇. the compliance documents described above shall be rendered as
if all activities performed by subservicers had been performed
directly by the Primary Servicer.
(v) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Back-Up Certification. In furtherance
of the second sentence of Section 11.6 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.
(d) Forms of Reports. Each report and certification delivered by
the Primary Servicer shall appear under a cover substantially in the form
attached hereto as Exhibit D. 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.
(e) Evidence of Engagement of Accounting Firm. Not later than
November 1 of each calendar year, the Primary Servicer shall deliver to the
Master Servicer evidence
35
(reasonably satisfactory to the Master Servicer) of the Primary Servicer's
engagement of an accounting firm to perform the report described in subsection
(c)(iv)(B).
(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.
(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(c)(iii)(C) (report of affiliations), Section
4.01(c)(iii)(D) (assessment of compliance and related assessment by a public
accounting firm), Section 4.01(c)(iii)(E) (compliance certification) and/or
Section 4.01(c)(iv) (▇▇▇▇▇▇▇▇-▇▇▇▇▇ backup certification) 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
36
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 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 PWR11 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[ clauses (i) through (m) of Section 2.4, (ii) any failure on
the part of the Primary Servicer to perform any of its obligations under this
Section 4.01 or the last sentence of Section 3.20 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 herein 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.
37
(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.
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
38
(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;
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 XIII
of the Pooling and Servicing Agreement;
(D) unless the Master Servicer otherwise consents,
the cure period described in this Section 6.1(c) 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 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(c)(i),
4.01(c)(ii), 4.01(c)(iii), 4.01(c)(iv)(A), 4.01(c)(iv)(B) or
4.01(c)(iv)(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 cause termination of the Master Servicer
under Section 7.01 as a result of an Event of Default 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
39
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 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 ▇▇▇▇▇'▇ 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
▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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.
40
(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.
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.
ARTICLE VI
TERMINATION
Section 6.01. Termination. 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
41
Servicer in writing; (iii) pursuant to Section 6.02 below; (iv) upon termination
of the Pooling and Servicing Agreement; or (v) pursuant to Section 3.27 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.
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 5.01 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 6.05 of this Agreement.
Section 6.03. Resignation of the Master Servicer. The Master Servicer shall not
resign from the duties and obligations imposed hereunder or under the Pooling
and Servicing Agreement, unless the requirements of the Pooling and Servicing
Agreement are satisfied and the proposed successor Master Servicer agrees, 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.
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, 5.01 or 5.02, 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. Closing. The closing for the commencement of the Primary Servicer
to perform the servicing responsibilities under this Agreement respecting the
Mortgage Loans shall take place on the Closing Date. At the Master Servicer's
option, the closing shall be either: by
42
telephone, confirmed by letter or wire as the parties shall agree; or conducted
in person, at such place as the parties shall agree.
Section 7.04. Closing Documents. The Closing Documents shall consist of (1) the
Pooling and Servicing Agreement in the form of Exhibit A hereto and (2) the
following documents to be provided by the Primary Servicer:
(a) this Agreement executed by the Primary Servicer; and
(b) an Officer's Certificate of the Primary Servicer, substantially in
the form of Exhibit B hereto, including all attachments thereto.
Section 7.05. 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.
Section 7.06. Severability Clause. Any part, provision, representation or
warranty of this Agreement which is prohibited or which is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to 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
43
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 7.07. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
Section 7.08. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with the laws of the
State of New York, without regard to conflict of laws principles applied in the
State of New York.
Section 7.09. Protection of Confidential Information. The Primary Servicer shall
keep confidential and shall not divulge to any party other than the Master
Servicer, the Depositor 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 7.10. 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.
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.
Section 7.11. Successors and Assigns; Assignment of Agreement. This Agreement
shall bind and inure to the benefit of and be enforceable by the Primary
Servicer and the Master Servicer and the respective successors and assigns of
the Primary Servicer and the Master Servicer. No Assignment of any right, duty
or obligation under this Agreement shall be effective and binding on the parties
hereto, unless such assignment is made in accordance with Section 3.22 hereof.
Section 7.12. 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, the last two sentences of Section 3.26 or this
sentence without the Depositor's prior written consent.
44
Section 7.13. 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 7.14. General Interpretive Principles. The general interpretive
principles 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 the purposes of this Agreement, be
deemed to be references to this Agreement.
Section 7.15. 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 7.16. Further Agreement. 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.
(The remainder of this page is intentionally left blank.)
45
IN WITNESS WHEREOF, the Primary Servicer and the Master Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the date first above written.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION,
as Master Servicer
By: _____________________________
Name: __________________
Title: _________________
NATIONWIDE LIFE INSURANCE COMPANY,
as Primary Servicer
By: _____________________________
Name: __________________
Title: _________________
EXHIBIT A
POOLING AND SERVICING AGREEMENT
(begins on next page)
A-1
EXHIBIT B
PRIMARY SERVICER'S OFFICER'S CERTIFICATE
We, _____________________ and _____________________, hereby certify
that we are the duly elected _____________________ and ___________________
of ________________________, a [corporation][limited partnership][national
banking association] organized under the laws of the [State of
__________________][United States of America] (the "Primary Servicer") and
further certify as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of
the [articles of incorporation][limited partnership agreement][charter] of the
Primary Servicer which are in full force and effect on the date hereof and which
has been in effect without amendment, waiver, rescission or modification since
_______________________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of
the by-laws of the Primary Servicer which are in effect on the date hereof and
which have been in effect without amendment, waiver, rescission or modification
since __________.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Primary Servicer, issued within thirty (30) days of the date
hereof, and no event has occurred since the date thereof which would impair such
standing
4. To the best of our knowledge, either (i) no consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by the Primary Servicer of or
compliance by the Primary Servicer with this Agreement or the consummation of
the transactions contemplated by this Agreement; or (ii) any required consent,
approval, authorization or order has been obtained by the Primary Servicer.
5. To the best of our knowledge, neither the consummation of the
transactions contemplated by, nor the fulfillment of the terms of this
Agreement, conflicts or will conflict with or results or will result in a breach
of or constitutes or will constitute a default under the charter or by-laws of
the Primary Servicer, the terms of any indenture or other agreement or
instrument to which the Primary Servicer is a party or by which it is bound or
to which it is subject, or any statute or order, rule, regulations, writ,
injunction or decree of any court, governmental authority or regulatory body to
which the Primary Servicer is subject or by which it is bound.
6. To the best of our knowledge, there is no action, suit, proceeding or
investigation pending or threatened against the Primary Servicer which, in our
judgment, either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial conditions,
properties or assets of the Primary Servicer or in any material impairment of
the right or ability of the Primary Servicer to carry on its business
substantially as now conducted or in any material liability on the part of the
Primary Servicer or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
transactions contemplated hereby, or which would be likely to impair materially
the ability of the Primary Servicer to perform under the terms of this
Agreement.
B-1
7. Each person listed on Exhibit 4 attached hereto who, as an officer or
representative of the Primary Servicer, signed this Agreement and any other
document delivered prior hereto or on the date hereof in connection with this
Agreement, was, at the respective times of such signing and delivery, and is
now, a duly elected or appointed, qualified and acting officer or representative
of the Primary Servicer, who holds the office or position set forth opposite his
or her name on Exhibit 4, and the signatures of such persons appearing on such
documents are their genuine signatures.
8. The Primary Servicer is duly authorized to engage in the transactions
described and contemplated in this Agreement.
B-2
IN WITNESS WHEREOF, we have hereunto each signed our name and affixed the
seal of the Primary Servicer.
Dated: __________________ By:______________________________
Name:____________________________
[Seal] Title:___________________________
I, _________________, an _________________ of _________________, hereby
certify that _________________ is the duly elected, qualified and acting
_________________ of the Primary Servicer and that the signature appearing above
is [her] [his] genuine signature and that _________________ is the duly elected,
qualified and acting _________________ of the Primary Servicer and that the
signature appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: __________________ By:______________________________
Name:____________________________
Title:___________________________
B-3
EXHIBIT 4 to
Primary Servicer's Officer's Certificate
Name Title Signature
---- ----- ---------
B-4
EXHIBIT C
MORTGAGE LOAN SCHEDULE
(begins on next page)
C-1
PRIMARY
LOAN SERVICING CUT-OFF
POOL FEE RATE DATE
NO. LOAN NAME (BPS) BALANCE
------ --------------------------------- ---------- -----------
6 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ 4.500 $66,908,068
11 ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 6.500 $26,250,000
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 6.360 $21,599,421
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Apartments 8.500 $15,200,000
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 6.000 $8,000,000
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ 8.500 $6,291,015
95 ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 6.500 $4,493,679
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8.500 $4,300,000
105 Shops at Breckinridge 8.500 $4,100,000
106 Advo Building 8.500 $4,086,375
▇▇▇ ▇▇▇▇'▇ ▇▇▇▇▇ 5.500 $3,914,694
117 Zocalo Center 7.500 $3,525,000
144 Milford Panera 8.500 $2,493,830
B-2
EXHIBIT D
[FORM OF COVER PAGE FOR REPORT OR CERTIFICATION]
COMPLIANCE INFORMATION REPORT
IDENTIFYING INFORMATION FOR THIS REPORT:
Date of Submission: _______
Depositor: ______________________________________________
Trust: ______________________________________________
Pooling and Servicing Agreement: Pooling and Servicing Agreement dated as of
_______, ___, among___________________________
Subservicing Agreement: Subservicing Agreement dated as of ________,
___, between ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer, and
______________, as Primary Servicer.
Master Servicer: ▇▇▇▇▇ Fargo Bank, National Association
Primary Servicer: ______________________________________________
Primary Servicer Contact Person: [Name][telephone][facsimile][email address]
THIS REPORT CONTAINS THE FOLLOWING INFORMATION:
Immediate Reporting:
|_| Form 8- K Reporting Information
Monthly Reporting:
|_| Form 10-D Reporting Information
Annual Reporting:
|_| Form 10-K Reporting Information
Annual Compliance:
|_| Compliance Assessment Report (Item 1122(a)) by
Primary Servicer on Compliance With Servicing
Criteria in Item 1122(d) of Regulation AB
|_| Attestation Report (Item 1122(b)) by Registered
Public Accounting Firm on Compliance Assessment
Report
|_| Statement of Compliance (Item 1123)
|_| ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Back-Up Certification
THIS REPORT AMENDS PRIOR REPORTING INFORMATION:
|_| Yes - Date of Submission of Prior Reporting
Information:
______/______/______
|_| No
D-1
EXHIBIT E
E-1
EXHIBIT F
F-1
EXHIBIT G
G-1
EXHIBIT H
FORM OF INSPECTION REPORT
(begins on next page)
H-1
EXHIBIT I
FORM OF CMSA STANDARD REPORTING PACKAGE
(begins on next page)
I-1
EXHIBIT J
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO MASTER SERVICER
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed items to
seek the consent of Master Servicer to a defeasance of a Mortgage Loan that
Primary Servicer is permitted to process under this Primary Servicing Agreement.
1. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
2. An Executed Certificate substantially in the form attached hereto at
Appendix 1.
3. (i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage
Loan, and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral.
4. Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required
of the related Mortgagor under the related Loan Documents without
additional expense to Primary Servicer or Master Servicer.
APPENDIX 1 TO EXHIBIT J
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
March 1, 2006, between Primary Servicer and ▇▇▇▇▇ Fargo Bank, N.A., as a master
servicer (the "Master Servicer") related to the Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities II Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-PWR11.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
NATIONWIDE LIFE INSURANCE COMPANY
By: _____________________________
Name:
Title:
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EXHIBIT K
FORM OF RESERVE ACCOUNT STATUS LIST
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K-1
EXHIBIT L
FORM OF ASSIGNMENT AND ASSUMPTION SUBMISSION
To Master Servicer
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EXHIBIT M
FORM OF ADDITIONAL LIEN, MONETARY ENCUMBRANCE AND
MEZZANINE FINANCING SUBMISSION
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M-1
EXHIBIT N
FORM OF SNDA
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EXHIBIT O
FORM OF RESERVE REPORT
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EXHIBIT P
FORM OF REMITTANCE REPORT
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EXHIBIT Q
FEE ADDENDUM
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FEE ADDENDUM
o ASSUMPTION/TRANSFERS
o A maximum non-refundable processing fee of $3,000 will be collected
from the borrower in connection with an assumption/transfer request
including for transfers that are specifically provided for in the
loan documents (such as for estate planning purposes). $1,000 of
such fee shall be paid to the Sub-Servicer and the remainder shall
be divided in accordance with the provisions of the Pooling and
Servicing Agreement and the Primary Servicing Agreement. For the
avoidance of doubt, the aforementioned processing fee should be
deducted from the assumption fee referenced in the Pooling and
Servicing Agreement.
o NEW LEASES
o No fee will be charged for a lease review for which lender consent
is required by the loan documents.
o If borrower requests the consent of the lender for a lease for which
lender consent is not required by the loan documents, then a maximum
fee of $1,000 can be charged. $250 of such fee shall be paid to the
Sub-Servicer and the remainder shall be divided in accordance with
the provisions of the Pooling and Servicing Agreement and the
Primary Servicing Agreement.
o SNDA
o If a non-standard SNDA form is submitted for review, a maximum fee
of $1,000 will be charged. $250 of such fee shall be paid to the
Sub-Servicer and the remainder shall be divided in accordance with
the provisions of the Pooling and Servicing Agreement and the
Primary Servicing Agreement.
o PARTIAL RELEASE OF COLLATERAL
o A non-refundable processing fee will not exceed $1,000. $250 of such
fee shall be paid to the Sub-Servicer and the remainder shall be
divided in accordance with the provisions of the Pooling and
Servicing Agreement and the Primary Servicing Agreement.
o The borrower will be required to pay a maximum release fee of
$15,000 plus all costs associated with the release (including a
REMIC opinion and any Rating Agency fees). The fee shall be divided
in accordance with the provisions of the Pooling and Servicing
Agreement and the Primary Servicing Agreement.
o EASEMENTS
o A non-refundable processing fee will not exceed $1,000. $250 of such
fee shall be paid to the Sub-Servicer and the remainder shall be
divided in accordance with the provisions of the Pooling and
Servicing Agreement and the Primary Servicing Agreement.
o CONDEMNATION
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o A non-refundable processing fee will not exceed $1,000. $250 of such
fee shall be paid to the Sub-Servicer and the remainder shall be
divided in accordance with the provisions of the Pooling and
Servicing Agreement and the Primary Servicing Agreement.
o SECONDARY FINANCING
o A non-refundable processing fee will not exceed $1,000. $250 of such
fee shall be paid to the Sub-Servicer and the remainder shall be
divided in accordance with the provisions of the Pooling and
Servicing Agreement and the Primary Servicing Agreement.
o OTHER FEES
o 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.
Any other fees, including those received in the circumstances described in this
addendum, in addition to those fees listed on this addendum, will be allocated
pursuant to the Pooling and Servicing Agreement and the Primary Servicing
Agreement.
No fees will be waived by the Master Servicer, the Primary Servicer or any
Sub-Servicer that are due to the Special Servicer, without the written consent
of the Special Servicer.
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EXHIBIT R
TIMING ADDENDUM
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TIMING ADDENDUM
To the extent that 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 time frames in which
such consent must be given and certain related matters. Capitalized terms used
herein and not defined shall have the meaning assigned to such terms in the
Primary Servicing Agreement.
ASSUMPTION/TRANSFERS
o Pursuant Section 3.08 or 3.20 of the Pooling and Servicing
Agreement, the Master Servicer hereby acknowledges that the Primary
Servicer has been delegated all of the Master Servicer's rights and
duties regarding assignment and assumptions.
NEW LEASES
o The Primary Servicer will have the authority to approve leases that
encumber 10% or less of the property's total net rentable area.
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
the Primary Servicer's recommendation for a lease that encumbers
greater than 10% of the net rentable area.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
SNDA
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
the Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
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o 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 of the Primary Servicer shall be deemed
approved.
PARTIAL RELEASE OF COLLATERAL
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
EASEMENTS
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
CONDEMNATION
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to
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exceed 1 Business Day) advise the Primary Servicer that the Special
Servicer's time to respond lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
SECONDARY FINANCING
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
CASH MANAGEMENT
o The Sub-Servicer will collect the payments from the borrower and,
except in connection with payoffs (principal prepayments,
liquidations and balloon payments), shall have 3 Business Days to
remit such payments to the Primary Servicer.
o All escrows will be held by either the Primary Servicer or
Sub-Servicer with any interest earned on the escrows retained by the
Sub-Servicer or paid to the borrower as the case may be.
o Releases from any escrows held for taxes and insurance do not
require consent of the Master Servicer or Special Servicer if the
release is being used to pay tax or insurance ▇▇▇▇▇▇▇▇.
o The Primary Servicer will have authority to manage all escrows other
than tax and insurance escrows with an initial deposit up to and
including $100,000.
o The release of funds from an escrow with an initial deposit in
excess of $100,000 will require the consent of the Master Servicer.
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer for a release from an escrow
from the date of receipt of Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to
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exceed 1 Business Day) advise the Primary Servicer that the Special
Servicer's time to respond lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
PAYOFFS
o The Master Servicer has 2 Business Days to confirm the payoff amount
including any required prepayment premium from the date it is
provided by the Primary Servicer.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 2 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
LETTER OF CREDIT RENEWALS AND RELEASES
o The Master Servicer has 5 Business Days to respond to the
recommendation of the Primary Servicer from the date of receipt of
Primary Servicer's recommendation.
o If approval of the Special Servicer is required, to the extent such
request is not made directly to the Special Servicer by the Primary
Servicer, the Master Servicer shall forward its recommendation to
the Special Servicer within such 5 Business Day period and shall
immediately upon receipt of the Special Servicer's decision (not to
exceed 1 Business Day) advise the Primary Servicer of such decision
or, if applicable, immediately (not to exceed 1 Business Day) advise
the Primary Servicer that the Special Servicer's time to respond
lapsed without a response.
o 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 of the Primary Servicer shall be deemed
approved.
o If a release of the Letter of Credit is approved, the party holding
the Letter has a 5 Business Day period to release.
NON-CANCELLATION OF PRIMARY SERVICER AND SUB-SERVICER
o The Master Servicer and Special Servicer have no right to terminate
the Primary Servicer or Sub-Servicer without cause.
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