KEYCORP REAL ESTATE CAPITAL MARKETS, INC.
Master Servicer
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Sub-Servicer
SUB-SERVICING AGREEMENT
Dated as of May 1, 2007
GE Commercial Mortgage Corporation,
Series 2007-C1 Trust
This is a Sub-Servicing Agreement (this "Agreement"), dated as of May 1,
2007, by and between WACHOVIA BANK, NATIONAL ASSOCIATION, having an office at NC
1075, 0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and its
successors and assigns (the "Sub-Servicer"), and KEYCORP REAL ESTATE CAPITAL
MARKETS, INC, having an office at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx,
Xxxxxxxx 00000, and its successors and assigns (the "Master Servicer").
W I T N E S S E T H:
WHEREAS, GE COMMERCIAL MORTGAGE CORPORATION (the "Depositor"), XXXXX FARGO
BANK, N.A. (the "Trustee"), LNR PARTNERS, INC., (the "Special Servicer") and the
Master Servicer have entered into that certain Pooling and Servicing Agreement
dated as of May 1, 2007, as amended, modified and restated from time to time
(the "Pooling and Servicing Agreement"), whereby the Master Servicer shall
master service certain mortgage loans, including the Mortgage Loans (defined
below), on behalf of the Trustee; and
WHEREAS, the Master Servicer desires to enter into a contract with the
Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto (the
"Mortgage Loans" or "Trust Mortgage Loans") on behalf of the Master Servicer.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Master Servicer and the Sub-Servicer
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01.
"Collection Report" shall mean the monthly report prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan and the most
recently ended Due Period prior to the due date of such report, the information
described on Exhibit G.
"Mortgage Loans" shall have the meaning specified in the recitals hereto.
"Sub-Servicer Remittance Amount" shall mean, with respect to any date, an
amount equal to, without duplication, (a) the sum of (i) the aggregate of the
amounts on deposit in the Sub-Servicer Custodial Account (as defined herein) as
of such date, (ii) if and to the extent not included in the amount referred to
in subclause (a)(i), the aggregate amount transferred from the REO Account (if
established) to the Sub-Servicer as of such date to the extent not previously
remitted to the Master Servicer, (iii) the aggregate of all other amounts
received with respect to the Mortgage Loans as of such date to the extent not
previously remitted to the Master Servicer and (iv) the aggregate amount of
Prepayment Interest Shortfalls deposited by the Sub-Servicer in the Sub-Servicer
Custodial Account as required by Section 3.19(a) of the Pooling and Servicing
Agreement as incorporated herein pursuant to Section 3.01(c)(22) of this
Agreement, to the extent not previously remitted to the Master Servicer, net of
(b) the portion of the amount described in subclause (a) of this definition that
represents one or more of the following: (i) Escrow Payments or (ii) any amounts
that the Sub-Servicer is entitled to retain as compensation pursuant to Section
3.11 of the Pooling and Servicing Agreement as incorporated herein pursuant to
Section 3.01(c)(16) of this Agreement.
"Sub-Servicer Custodial Account" shall have the meaning specified in
Section 3.01(c)(6) of this Agreement.
"Sub-Servicer Remittance Date" shall mean the second Business Day prior to
each Distribution Date.
"Sub-Servicing Fee" shall mean, with respect to each Mortgage Loan and REO
Loan, the fee payable to the Sub-Servicer pursuant to Section 3.01(c)(16) of
this Agreement.
"Sub-Servicing Fee Rate" shall mean, with respect to each Mortgage Loan,
the rate that corresponds to such Mortgage Loan set forth on Exhibit A hereto
under the heading "Sub-Service Fee %".
"Trust Mortgage Loans" shall have the meaning specified in the recitals
hereto.
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-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 Sub-Servicer, subject to the terms of this Agreement,
for the servicing of the Mortgage Loans. On and after the Closing Date, the
Sub-Servicer shall hold any portion of the Servicing File or the Mortgage File
in the possession of the Sub-Servicer in trust by the Sub-Servicer, on behalf of
the Master Servicer for the benefit of the Trustee. The Sub-Servicer's
possession of any portion of the Servicing File or the Mortgage File shall be at
the will of the Master Servicer and the Trustee for the sole purpose of
facilitating the servicing or the supervision of servicing of the related
Mortgage Loan pursuant to this Agreement, and such retention and possession by
the Sub-Servicer shall be in a custodial capacity only. Any portion of the
Servicing File or the Mortgage File retained by the Sub-Servicer shall be
identified to reflect clearly the ownership of the related Mortgage Loan by the
Trustee. The Sub-Servicer shall release from its custody any Mortgage File
retained by it only in accordance with this Agreement and the Pooling and
Servicing Agreement. The Sub-Servicer shall provide to the Master Servicer as
soon as reasonably practicable after request therefor by the Master Servicer a
copy of any documents held by it with respect to any Mortgage Loan. During the
term of this Agreement, the Sub-Servicer will also provide to the Master
Servicer a copy of any lease, amendments and other documents related to the
Mortgaged Property securing the related Mortgage Loan or related to the Mortgage
Loan as soon as reasonably possible after receipt or execution thereof, as
applicable.
Section 2.02 Sub-Servicer Certification.
The Sub-Servicer shall promptly notify the Master Servicer upon becoming
aware of any breach of any representations and warranties contained in any
applicable Mortgage Loan Purchase Agreement.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service and
administer the Mortgage Loans in a manner consistent with the Servicing Standard
under the Pooling and Servicing Agreement.
(b) The Sub-Servicer shall perform, on behalf of the Master Servicer, all
of the obligations of the Master Servicer (with respect to the Mortgage Loans
subject to this Agreement) as set forth in those sections of the Pooling and
Servicing Agreement incorporated herein pursuant to Section 3.01(c) of this
Agreement (the "Incorporated Sections"), as modified by Section 3.01(c) of this
Agreement, and the Master Servicer shall have the same rights with respect to
the Sub-Servicer that the Trustee, the Depositor, the Underwriters, the Rating
Agencies, and the Certificateholders (including, without limitation, the right
of the Special Servicer to direct the Master Servicer during certain periods)
have with respect to the Master Servicer under the Pooling and Servicing
Agreement to the extent that the Sub-Servicer is acting on behalf of the Master
Servicer hereunder and except as otherwise set forth herein. Without limiting
the foregoing, and subject to Section 3.21 of the Pooling and Servicing
Agreement as modified herein, the Sub-Servicer shall service and administer all
of the Mortgage Loans which are performing Mortgage Loans and shall render such
services with respect to the Mortgage Loans which are Specially Serviced
Mortgage Loans as are specifically provided for herein. In furtherance of the
foregoing, with respect to Specially Serviced Mortgage Loans, upon any Mortgage
Loan becoming a Specially Serviced Mortgage Loan, the Sub-Servicer shall
continue to collect information and prepare all reports to the Trustee required
from the Master Servicer under the Pooling and Servicing Agreement with respect
to any Specially Serviced Mortgage Loans and REO Properties (and the related REO
Loans), and further to render such incidental services with respect to any
Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein. All references herein to the respective duties of the
Sub-Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21 of the Pooling and
Servicing Agreement, as modified herein and to the Special Servicer's rights to
service Specially Serviced Mortgage Loans. Except as otherwise set forth below,
for purposes of this Agreement, references to the Trustee, the Depositor, the
Underwriters, the Rating Agencies, and the Certificateholders in the
Incorporated Sections (and in the defined terms used therein) shall be deemed to
be references to the Master Servicer hereunder and references to the Master
Servicer in the Incorporated Sections (and in the defined terms used therein)
shall be deemed to be references to the Sub-Servicer hereunder (such
modification of the Incorporated Sections shall be referred to herein as the
"References Modification").
(c) The following Sections of the Pooling and Servicing Agreement, unless
otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below:
(1) Section 3.01. Without limiting the generality of the obligations
of the Sub-Servicer hereunder, the Sub-Servicer shall monitor and certify
on a quarterly basis starting for the quarter ending in June, 2007 on the
25th of the month following the end of each calendar quarter, the
information on each Mortgage Loan as required by, and in the form of,
Exhibit E attached hereto, pursuant to Section 3.01(c)(7) of this
Agreement. In addition, without limiting the generality of the foregoing,
the Sub-Servicer shall take all necessary action to continue all UCC
Financing Statements in favor of the originator of each Mortgage Loan or
in favor of any assignee prior to the expiration of such UCC Financing
Statements.
(2) Section 3.02. The determination as to the application of amounts
collected in respect of any Mortgage Loan, to the extent the application
is not governed by the express provisions of the related Mortgage Note or
Mortgage, shall be made by the Master Servicer.
(3) Section 3.03(a). The creation of any Servicing Account shall be
evidenced by a certification in the form of Exhibit F attached hereto and
a copy of such certification shall be furnished to the Master Servicer
upon execution of this Agreement and thereafter to the Master Servicer
upon any transfer of the Servicing Account.
(4) Section 3.03(b). Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and, on the 25th of the month following the end of each calendar quarter,
beginning with the quarter ending in June, 2007, certify to the
information on each Mortgage Loan with respect to taxes, insurance
premiums, assessments, ground rents and other similar items, as required
by, and in the form of, Exhibit E attached hereto, pursuant to Section
3.01(c)(7) of this Agreement. The Sub-Servicer shall not be obligated to
make any Servicing Advances, except as described in the following
sentence. The Sub-Servicer shall give the Master Servicer not less than
five Business Days' notice before the date on which the Master Servicer is
required to make any Servicing Advance with respect to any Mortgage Loan;
provided, however, that, with respect to any Servicing Advance (necessary
for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies (including Environmental
Insurance Policies)) required to be made on an urgent or emergency basis
such that the Sub-Servicer is unable to provide the Master Servicer with
sufficient notice to enable the Master Servicer to make such Servicing
Advance, the Sub-Servicer shall make such Servicing Advance and the Master
Servicer shall reimburse the Sub-Servicer for such Servicing Advance
within five Business Days of receipt of written request therefor and
interest thereon at the Reimbursement Rate. In addition, the Sub-Servicer
shall provide the Master Servicer with such information in its possession
as the Master Servicer may reasonably request to enable the Master
Servicer to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance.
(5) Section 3.03(g).
(6) Section 3.04(a). The Sub-Servicer shall establish a custodial
account (hereinafter the "Sub-Servicer Custodial Account"), meeting all of
the requirements of the Certificate Account, and references to the
Certificate Account shall be references to such Sub-Servicer Custodial
Account. For purposes of the third to last paragraph of Section 3.04(a),
the Master Servicer shall direct the Special Servicer to make payment of
amounts referenced therein directly to the Sub-Servicer for deposit in the
Sub-Servicer Custodial Account. The creation of any Sub-Servicer Custodial
Account shall be evidenced by a certification in the form of Exhibit F
attached hereto and a copy of such certification shall be furnished to the
Master Servicer upon execution of this Agreement (or upon creation of such
account, if not created upon execution of this Agreement) and thereafter
to the Master Servicer upon any transfer of the Sub-Servicer Custodial
Account.
(7) Section 3.04(b). References to the Distribution Account shall be
references to the Certificate Account, references to the P&I Advance Date
shall be references to the Sub-Servicer Remittance Date and references to
the Available Distribution Amount shall be references to the Sub-Servicer
Remittance Amount. Each remittance required to be made to the Master
Servicer on the Sub-Servicer Remittance Date shall be made by wire
transfer. Each month, on each Business Day between the Sub-Servicer
Remittance Date and the Distribution Date, the Sub-Servicer shall forward
to the Master Servicer by wire transfer the Sub-Servicer Remittance Amount
for such date. Each month, on each Business Day that the Sub-Servicer is
not required to remit to the Master Servicer pursuant to the previous
sentence, the Sub-Servicer shall forward to the Master Servicer by wire
transfer all amounts collected by the Sub-Servicer and not previously
remitted to the Master Servicer which constitute delinquent payments on
the Mortgage Loans and any related late fees or Default Interest
(excluding any amounts to which the Sub-Servicer is entitled to as
compensation pursuant to Section 3.11 as incorporated herein pursuant to
Section 3.01(c)(16) & (17) of this Agreement). The next paragraph of this
Section 3.01(c)(7) of this Agreement sets forth certain reporting
requirements with respect to such remittances. The second paragraph of
Section 3.04(b), Subsection (i) of the fourth paragraph of Section 3.04(b)
and the sixth and seventh paragraphs of Section 3.04(b) are not
incorporated herein.
The Sub-Servicer shall deliver to the Master Servicer and the
Special Servicer not later than 1:00 p.m. New York City time on the first
Business Day following the Determination Date by electronic transmission
in a format designated by the Master Servicer, (a) on a monthly basis, the
Collection Report (the information therein to be stated as of the
Determination Date) and (b) on a quarterly basis, the information on the
Mortgage Loans, including without limitation information regarding UCC
Financing Statements, taxes, insurance premiums and ground rents, on a
quarterly basis, starting for the quarter ending in June, 2007, within
thirty (30) days of the end of such quarter required by and in the form of
Exhibit E attached hereto. The Sub-Servicer shall deliver to the Master
Servicer on the second Business Day of each month by electronic
transmission in a format designated by the Master Servicer, a remittance
report containing scheduled balance information for each Mortgage Loan
reflecting the scheduled Monthly Payment for such month in the form of
Exhibit G attached hereto. In addition, on each day that the Sub-Servicer
forwards to the Master Servicer any funds pursuant to the previous
paragraph, the Sub-Servicer shall deliver to the Master Servicer by
electronic transmission in a format designated by the Master Servicer a
report of the nature of such remittance in the form of Exhibit G attached
hereto. The Sub-Servicer shall also prepare and deliver to the Master
Servicer and Special Servicer not later than 4:00 p.m. New York City time
on the first Business Day following the Determination Date a certification
in the form of Exhibit J.
(8) Section 3.05(a) is not incorporated herein. The Sub-Servicer
may, from time to time, make withdrawals from the Sub-Servicer Custodial
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) to remit to the Master Servicer for deposit in the
Certificate Account the amounts required to be so deposited pursuant
to the first paragraph of Section 3.04(b) and Section 3.01(c)(7) of
this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing Fees
(which are the fees payable as compensation to the Sub-Servicer and
out of which the Sub-Servicer shall pay fees it is obligated to pay
any correspondent) in respect of each Mortgage Loan and REO Loan,
the Sub-Servicer's right to payment pursuant to this clause (ii)
with respect to any Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Mortgage Loan (whether in
the form of payments, Liquidation Proceeds or Insurance Proceeds) or
such REO Loan (whether in the form of REO Revenues, Liquidation
Proceeds or Insurance Proceeds) that are allocable as a recovery of
interest thereon;
(iii) to pay to itself, as additional servicing compensation
in accordance with the third paragraph of Section 3.11(a), interest
or other income earned in respect of amounts held in the
Sub-Servicer Custodial Account as provided in Section 3.01(c)(9) of
this Agreement, but only to the extent of the Net Investment
Earnings, if any, with respect to the Sub-Servicer Custodial Account
for each Due Period;
(iv) to clear and terminate the Sub-Servicer Custodial Account
at the termination of this Agreement pursuant to Section 9.01, as
modified herein; and
(v) any amounts deposited in the Sub-Servicer Custodial
Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Sub-Servicer Custodial Account pursuant to clauses
(ii) and (iii) above.
(9) Section 3.06 is not incorporated herein. The Sub-Servicer may invest
funds in the Sub-Servicer Custodial Account on the same terms as the Master
Servicer may invest funds in the Certificate Account, and subject to the same
restrictions and obligations regarding maturity dates, gains, losses, possession
of Permitted Investments and Permitted Investments payable on demand. Without
limiting the generality of the foregoing, (A) any investment of funds in the
Sub-Servicer Custodial Account shall be made in the name of the Trustee (in its
capacity as such) and (B) the Sub-Servicer, on behalf of the Trustee, shall (i)
be the "entitlement holder" of any Permitted Investment that is a "security
entitlement" and (ii) maintain "control" of any Permitted Investment that is
either a "certificated security", an "uncertificated security" or "deposit
account". For purposes of this Section 3.01(c)(9), the terms "entitlement
holder", "security entitlement", "control", "certificated security" and
"uncertificated security" shall have the meanings given such terms in Revised
Article 8 (1994 Revision) of the UCC, and the terms "control" (with respect to
deposit accounts) and "deposit account" shall have the meanings given such terms
in Revised Article 9 (1998 Revision) of the UCC, and (ii) "control" of any
Permitted Investment by the Sub-Servicer shall constitute "control" by a Person
designated by, and acting on behalf of, the Trustee for purposes of Revised
Article 8 (1994 Revision) of the UCC or Revised Article 9 (1998 Revision) of the
UCC as applicable.
(10) Section 3.07(a). References to the applicable Certificate Account
shall be references to the Sub-Servicer Custodial Account. Within fifteen (15)
days after execution of this Agreement, the Sub-Servicer shall forward to the
Master Servicer, for each Mortgage Loan, a fully completed certificate of
insurance in the form of Exhibit H attached hereto. Additionally, the
Sub-Servicer must immediately notify the Master Servicer of any Mortgage Loan
which does not have insurance covering acts of terrorism in accordance with the
related Mortgage Loan documents. Any required determination as to whether either
(a) such insurance is not available at any rate or (b) such insurance is not
available at commercially reasonable rates and that such hazards are not at the
time commonly insured against for properties similar to the Mortgaged Property
and located in or around the geographic region in which such Mortgaged Property
is located, will be made by the Special Servicer in accordance with the Pooling
and Servicing Agreement. Without limiting the generality of the obligations of
the Sub-Servicer hereunder, the Sub-Servicer shall monitor and, on the 25th of
the month following the end of each calendar quarter, beginning with the quarter
ending in June, 2007, certify to the status of insurance policies relating to
the Mortgage Loans, as required by, and in the form of, Exhibit E attached
hereto, pursuant to Section 3.01(c)(7) of this Agreement.
(11) Section 3.07(b). References to the applicable Certificate Account
shall be references to the Sub-Servicer Custodial Account. Where possible and
within acceptable servicing standards, any force placed policy caused to be
maintained by the Sub-Servicer under Section 3.07(b) shall also name any
organization or entity now or hereafter owned, created, controlled or operated
by the named insured, and other companies or corporations for whom the named
insured is contractually obligated to provide insurance coverage on lender
placed or real estate owned property.
(12) Section 3.07(d).
(13) Section 3.08. If, pursuant to the terms of Section 3.08 of the
Pooling and Servicing Agreement, any action to be taken by the Sub-Servicer
thereunder with respect to the receipt, review or processing of Mortgagor
requests relating to assumptions, transfers of interests, and further
encumbrances of, or subordinate financing on, Mortgaged Properties requires the
consent of the Special Servicer, any Rating Agency or any other person (any such
person whose consent is so required is hereinafter referred to as a "Consenting
Party"), then the Sub-Servicer shall be entitled to take such action if (i) the
Sub-Servicer shall have provided to the Master Servicer, contemporaneously with
soliciting such consent or submitting any request for consent from the
applicable Consenting Party, (x) all notices, documents and records (or copies
thereof) relevant to such Mortgagor Request and (y) a copy of any
recommendation, report or other document (each such recommendation, report or
other documents a "Consent Document") to be provided to the Consenting Party by
the Sub-Servicer in connection with such Mortgagor request and (ii) all
requirements of the Pooling and Servicing Agreement have been met. Upon the
completion of the processing of any Mortgagor request contemplated by Section
3.08 of the Pooling and Servicing Agreement, the Sub-Servicer shall promptly
provide copies of any documentation or correspondence relating to such request,
including, without limitation, all executed documents, certificates, agreements
and opinions relating to such request, to the Master Servicer. On each
Determination Date, or upon written request of the Master Servicer, the
Sub-Servicer shall provide to the Master Servicer a written status report in
such form as shall be reasonably acceptable to Master Servicer with respect to
all matters for which any consent request governed by Section 3.08 of the
Pooling and Servicing Agreement is outstanding as of such Determination Date or
has been resolved since the immediately preceding Determination Date. In
addition to the written report contemplated by the immediately preceding
sentence, upon request of the Master Servicer the Sub-Servicer shall participate
in a status conference call with the Master Servicer with respect to any consent
request governed by Section 3.08 of the Pooling and Servicing Agreement. The
Sub-Servicer shall provide the Master Servicer any notice described in Section
3.08(b) regarding further encumbrances, along with all documents and records (or
copies thereof) in the Sub-Servicer's possession regarding the further
encumbrance.
(14) Section 3.09. In addition to the CMSA Delinquent Loan Status Report
required by Section 3.01(c)(19) of this Agreement, on the last Business Day of
each month, the Sub-Servicer shall provide to the Master Servicer and the
Special Servicer a CMSA Delinquent Loan Status Report, provided that the
information set forth in such report shall be as of the close of business on the
Business Day immediately preceding the delivery of such report. Notwithstanding
the foregoing, no CMSA Delinquent Loan Status Report shall be required under
this Section 3.01(c)(14) in any month in which the Monthly Payments for all
Mortgage Loans have been collected as of the related Determination Date, and, in
any month in which the Monthly Payments for all Mortgage Loans have not been
collected as of the related Determination Date, no CMSA Delinquent Loan Status
Report shall be required under this Section 3.01(c)(14) after the delivery in
such month of a CMSA Delinquent Loan Status Report under this Section
3.01(c)(14) reflecting that no Mortgage Loan is delinquent. The Master Servicer
may deem the failure by Sub-Servicer to deliver a CMSA Delinquent Loan Status
Report as a certification that no Mortgage Loan is delinquent as of the related
Determination Date.
(15) Section 3.10. The references to the appropriate Certificate Account
or any Certificate Account or the related Certificate Account shall be
references to the Sub-Servicer Custodial Account. No expense incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Sub-Servicer Custodial Account.
(16) Section 3.11(a). References to the Servicing Fee shall be references
to the Sub-Servicing Fee and references to the Servicing Fee Rate shall be
references to the Sub-Servicing Fee Rate. The Sub-Servicer shall not be entitled
to a Sub-Servicing Fee on any Non-Serviced Mortgage Loan or any REO Loan related
thereto. All references to the Certificate Accounts shall be references to the
Sub-Servicer Custodial Account. Any late payment or other fees (including
Default Interest) paid in respect of a delinquent loan to which the Master
Servicer is entitled under the Pooling and Servicing Agreement (other than as
payment of interest on Advances or Additional Trust Fund Expenses) shall be
divided equally between the Sub-Servicer and the Master Servicer if the
Sub-Servicer participates in the realization upon such delinquent loan, and
shall otherwise be paid to the Master Servicer. The Sub-Servicer shall be
entitled to (i) any Prepayment Interest Excesses to the extent not required by
the Pooling and Servicing Agreement to offset any Prepayment Interest Shortfalls
with respect to any Mortgage Loan (as defined in the Pooling and Servicing
Agreement) and (ii) subject to any required fee splitting contemplated by the
Pooling and Servicing Agreement, any modification fees, defeasance fees,
assumption fees, application fees or other fees or charges in connection with an
assumption, defeasance or transfer request collected with respect to the
Mortgage Loans.
(17) Section 3.11(c).
(18) Section 3.12(a) and (b). The Sub-Servicer shall promptly forward to
the Master Servicer a copy of all inspection reports prepared by the
Sub-Servicer and all operating statements and rent rolls collected by the
Sub-Servicer. The Sub-Servicer shall promptly forward each CMSA NOI Adjustment
Worksheet and CMSA Operating Statement Analysis Report to the Master Servicer
after each update. At the request of the Master Servicer, and to the extent the
following listed statements, budgets and rent rolls are required by the related
Mortgage to be delivered, the Sub-Servicer shall direct the Mortgagor to forward
to the Sub-Servicer annual, quarterly and monthly operating statements, budgets
and rent rolls of the related Mortgaged Property, and financial statements of
the related Mortgagor. Reasonably promptly upon the Sub-Servicer's receipt of
such items, the Sub-Servicer shall forward them to the Master Servicer. At the
request of the Master Servicer, the Sub-Servicer shall send to each Mortgagor a
notice directing the Mortgagor to forward to the Special Servicer annual,
quarterly and monthly operating statements, budgets and rent rolls of the
related Mortgaged Property, and financial statements of the related Mortgagor.
(19) Section 3.12(d) is not incorporated herein. The Sub-Servicer shall
deliver to the Master Servicer, no later than 3:00 p.m. New York City time on
the second Business Day preceding the Distribution Date, by electronic
transmission in the format designated by the Master Servicer, a CMSA Property
File, a CMSA Financial File, a CMSA Comparative Financial Status Report, a CMSA
Delinquent Loan Status Report, a CMSA Servicer Watch List, a CMSA Total Loan
Report, a CMSA Historical Loan Modification and Corrected Mortgage Loan Report
and a CMSA Loan Level Reserve LOC Report, each providing the required
information as of the related Determination Date. In addition, the Sub-Servicer
shall deliver to the Master Servicer and the Special Servicer, no later than
3:00 p.m. New York City time on the third Business Day preceding the
Distribution Date, by electronic transmission in the format designated by the
Master Servicer, a CMSA Loan Periodic Update File, providing the required
information as of the related Determination Date. The preparation and
maintenance by the Sub-Servicer of all the reports specified in Section
3.01(c)(18) and (19) of this Agreement, including the calculations made therein,
shall be done in accordance with CMSA standards.
(20) Section 3.12(h).
(21) Section 3.15(a).
(22) Section 3.19(a) and (b). The Sub-Servicer shall deposit all
Prepayment Interest Shortfalls in the Sub-Servicer Custodial Account on each
Sub-Servicer Remittance Date. The Sub-Servicer shall also inform the ground
lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer in addition to the Sub-Servicer.
The Sub-Servicer shall also inform the hospitality franchisor that any notices
of default under the related franchise agreement should thereafter be forwarded
to the Master Servicer in addition to the Sub-Servicer.
(23) Section 3.20. If, pursuant to the terms of Section 3.20 of the
Pooling and Servicing Agreement, any action to be taken by the Sub-Servicer
thereunder relating to any modification, extension, waiver or amendment, or any
approval of a lease or extension or renewal thereof requires the consent of the
Special Servicer, any Rating Agency or any other person (any such person whose
consent is so required is hereinafter referred to as a "3.20 Consenting Party"),
then the Sub-Servicer shall be entitled to take such action only if (i) the
Sub-Servicer shall have provided to the Master Servicer, contemporaneously with
soliciting such consent or submitting any request for consent from the
applicable 3.20 Consenting Party, (x) all notices, documents and records (or
copies thereof) relevant to the request and (y) a copy of any recommendation,
report or other document (each such recommendation, report or other documents a
"3.20 Consent Document") that is required to be provided to the 3.20 Consenting
Party by the Sub-Servicer in connection with such matter and (ii) all
requirements of the Pooling and Servicing Agreement have been met. Upon the
completion of the processing of any modification, extension, waiver or
amendment, or any approval of a lease or extension or renewal thereof
contemplated by Section 3.20 of the Pooling and Servicing Agreement, the
Sub-Servicer shall promptly provide copies of any documentation or
correspondence relating to such request to the Master Servicer and shall
cooperate with and assist the Master Servicer in obtaining information necessary
for the further analysis of such request. Upon written request of the Master
Servicer, the Sub-Servicer shall provide to the Master Servicer a written status
report in such form as shall be reasonably acceptable to Master Servicer with
respect to all matters for which any consent request under Section 3.20 of the
Pooling and Servicing Agreement is outstanding as of such Determination Date or
has been resolved since the immediately preceding Determination Date. In
addition to the written report contemplated by the immediately preceding
sentence, upon request of the Master Servicer the Sub-Servicer shall participate
in a status conference call with the Master Servicer with respect to any consent
request governed by Section 3.20 of the Pooling and Servicing Agreement. When
forwarding a request for the approval of any lease or renewal or extension
thereof, the Sub-Servicer shall forward to the Master Servicer the information
concerning such lease required by, and in the form of, Exhibit I attached
hereto. Notwithstanding the foregoing provisions of this Section 3.01(c)(23),
the Sub-Servicer will not permit any Principal Prepayment with respect to any
Mortgage Loan without the written consent of the Master Servicer. The
Sub-Servicer shall promptly forward all requests for Principal Prepayments to
the Master Servicer, along with a payoff statement (with respect to each
Principal Prepayment request) setting forth the amount of the necessary
Principal Prepayment calculated by the Sub-Servicer.
(24) Section 3.21(a). The Sub-Servicer shall immediately notify the Master
Servicer of any event or circumstance that the Sub-Servicer deems to constitute
a Servicing Transfer Event with respect to any Mortgage Loan. The determination
as to whether a Servicing Transfer Event has occurred shall be made by the
Master Servicer and the Master Servicer shall promptly notify the Sub-Servicer
of any such determination. Upon receipt by the Master Servicer of notice from
the Special Servicer that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer to service
and administer such Mortgage Loan shall resume.
(25) Section 3.21(c). The Sub-Servicer shall give immediate notice to the
Master Servicer of any Servicing Transfer Event and shall maintain ongoing
payment records with respect to each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan or an REO Property and shall timely provide the Master
Servicer and the Special Servicer with any information required by either to
perform their respective duties under the Pooling and Servicing Agreement.
(26) Section 3.22. References to the Master Servicer shall not be deemed
to be references to the Sub-Servicer for purposes of Section 3.22. Each and
every one of the terms and conditions of Section 3.22 shall be enforceable
against the Sub-Servicer in accordance with the terms thereof. The Sub-Servicer
may not enter into any new Sub-Servicing Agreements in connection with the
Mortgage Loans and shall directly service the Mortgage Loans in accordance with
the terms and conditions of this Agreement.
(27) Section 3.23. The first sentence of Section 3.23(a)(i) shall be
deemed modified to read "The Sub-Servicer is a national banking organization
duly organized, validly existing and in good standing under the laws of the
United States, and the Sub-Servicer is in compliance with the laws of each State
in which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement." Each insurance policy and fidelity bond
referenced in Section 3.07(c) names the Master Servicer as an additional insured
and loss payee. The Sub-Servicer is authorized to transact business in each
state in which a Mortgaged Property is located, if and to the extent required by
applicable law.
(28) Section 3.31.
(29) Section 3.34.
(30) Section 4.02(b).
(31) Section 4.03 is not incorporated herein. The Sub-Servicer shall have
no obligation to make P&I Advances.
(32) Section 11.01.
(33) Section 11.03.
(34) Section 11.05.
(35) Section 11.06 is not incorporated herein. For so long as the Trust is
subject to the reporting requirements of the Exchange Act, as set forth on
Schedule 7 of the Pooling and Servicing Agreement, within 5 calendar days after
the related Distribution Date, (i) the Sub-Servicer shall be required to provide
to the Master Servicer, the Trustee and the Depositor, in XXXXX-compatible
format (to the extent available to the Sub-Servicer in such format) or in such
other format as otherwise agreed upon by the Master Servicer, the Trustee and
the Depositor and the Sub-Servicer, to the extent a Servicing Officer or
Responsible Officer, as the case may be, thereof has actual knowledge (other
than with respect to disclosure required pursuant to Item 1117 or Item 1119 of
Regulation AB as to the Sub-Servicer which shall be reported if actually known
by any Servicing Officer or Responsible Officer, as the case may be, or any
lawyer in the in-house legal department of the Sub-Servicer), any Additional
Form 10-D Disclosure, if applicable, described on Schedule 7 of the Pooling and
Servicing Agreement, if applicable and (ii) include with such Additional Form
10-D Disclosure, an Additional Disclosure Notification in the form attached to
the Pooling and Servicing Agreement as Schedule 11.
(36) Section 11.07 is not incorporated herein. For so long as the Trust is
subject to the reporting requirements of the Exchange Act, no later than March
1st (with a grace period through March 15th), commencing in March 2008 (i) the
Sub-Servicer shall be required to provide to the Master Servicer, the Trustee
and the Depositor, to the extent a Servicing Officer or Responsible Officer, as
the case may be, thereof has actual knowledge (other than with respect to
disclosure required pursuant to Item 1117 or Item 1119 of Regulation AB as to
the Sub-Servicer which shall be reported if actually known by any Servicing
Officer or Responsible Officer, as the case may be, or any lawyer in the
in-house legal department of the Sub-Servicer), in XXXXX-compatible format (to
the extent available to the Sub-Servicer in such format), or in such other form
as otherwise agreed upon by the Master Servicer, the Trustee and the Depositor
and the Sub-Servicer, the form and substance of the Additional Form 10-K
Disclosure described on Schedule 8 of the Pooling and Servicing Agreement
applicable to the Sub-Servicer and (ii) include with such Additional Form 10-K
Disclosure, an Additional Disclosure Notification in the form attached to the
Pooling and Servicing Agreement as Schedule 11.
(37) Section 11.08. At least five Business Days prior to when the Master
Servicer is required to deliver its Performance Certification under the Pooling
and Servicing Agreement, the Subservicer shall (in addition to the delivery of a
Performance Certification in its capacity as a Reporting Servicer under PSA
Section 11.08) deliver to the Master Servicer, for each year in which the Trust
is subject to the reporting requirements of the Exchange Act for the preceding
fiscal year (and otherwise within a reasonable period of time upon request), a
certification substantially in the form of PSA Exhibit U-2 (a "Back-up
Certification"), on which the Master Servicer and the Master Servicer's
officers, directors, members, managers, employees, agents and Affiliates
(collectively, the "SSA Certification Parties") can rely. The Subservicer shall,
if it is terminated or resigns pursuant to the terms of this Agreement, provide
a Back-up Certification to the Master Servicer with respect to the period of
time it was subject to this Agreement. Without limiting the foregoing, each
Back-up Certification shall include (x) a reasonable reliance statement by the
Subservicer enabling the SSA Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 3.01(c)(39), (ii) annual
report on assessment of compliance with the Servicing Criteria provided pursuant
to Section 3.01(c)(40) and (iii) registered public accounting firm attestation
report provided pursuant to Section 3.01(c)(41) and (y) a certification that
each such annual report on assessment of compliance discloses any material
instances of noncompliance described to the Subservicer's registered public
accounting firm to enable such accountants to render the attestation provided
for in Section 3.01(c)(41). If the Master Servicer's certification requirements
are modified under the Pooling and Servicing Agreement, the parties hereto agree
to negotiate in good faith to modify the Back-up Certification delivered by the
Sub-Servicer to comply with such change. The Sub-Servicer shall indemnify and
hold harmless the Master Servicer for all losses, liabilities, claims, damages,
costs and expenses (including reasonable attorney's fees and expenses) resulting
from a breach of any certification given pursuant to this section or from the
negligence, bad faith or willful misfeasance of the Sub-Servicer in connection
with the performance by the Sub-Servicer of its duties hereunder.
(38) Section 11.09 is not incorporated herein. For so long as the Trust is
subject to the reporting requirements of the Exchange Act, the Sub-Servicer
shall, to the extent a Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge (other than with respect to disclosure required
pursuant to Item 1117 or Item 1119 of Regulation AB as to the Sub-Servicer which
shall be reported if actually known by any Servicing Officer or Responsible
Officer, as the case may be, or any lawyer in the in-house legal department of
the Sub-Servicer), use their reasonable efforts to provide to the Master
Servicer, the Depositor and the Trustee within 1 Business Day after the
occurrence of the Reportable Event, but shall provide in no event later than
noon (New York City time) on the 2nd Business Day after the occurrence of the
Reportable Event, the form and substance of the Form 8-K Disclosure Information
described on Schedule 9 of the Pooling and Servicing Agreement as applicable to
the Sub-Servicer, in XXXXX-compatible format (to the extent available to the
Sub-Servicer in such format), or in such other format as otherwise agreed upon
by the Master Servicer, the Trustee and the Depositor and the Sub-Servicer and
accompanied by an Additional Disclosure Notification in the form attached to the
Pooling and Servicing Agreement as Schedule 11.
(39) Section 11.11. The Annual Statement of Compliance shall be delivered
by the Sub-Servicer (without regard to whether the Sub-Servicer is an Servicing
Function Participant) by March 31st of each year, beginning March 31, 2008,
except as set forth in Section 11.11 with respect to years in which Depositor
reporting to the Commission is required. In such years, the Annual Statement of
Compliance shall be delivered on or before the third Business Day preceding
March 10th of each year. If the Sub-Servicer is an Servicing Function
Participant, the Annual Statement of Compliance shall be delivered to all the
parties specified in Section 11.11, and if the Sub-Servicer is not an Servicing
Function Participant, the Annual Statement of Compliance shall be delivered only
to the Master Servicer.
In the event that the Sub-Servicer is terminated, assigns its rights
or resigns pursuant to the terms of this Agreement, the Sub-Servicer shall
provide, and shall use its reasonable efforts to cause any Servicing
Function Participant that resigns, assigns its rights or is terminated
under any applicable servicing agreement to provide, an Annual Statement
of Compliance pursuant to this Section 3.01(c)(39) with respect to the
period of time that the Sub-Servicer was subject to this Agreement.
(40) Sections 11.12 and 11.13. The Annual Attestation Report and Annual
Assessment Report (along with the consent of the accounting firm) shall be
delivered by the Sub-Servicer (without regarding to whether the Sub-Servicer is
a Servicing Function Participant) by March 31st of each year, beginning March
31, 2008, except as set forth in Sections 11.12 and 11.13 with respect to years
in which Depositor reporting to the Commission is required. In such years, the
Annual Attestation Report and Annual Assessment Report shall be delivered on or
before the third Business Day preceding March 10th of each year. If the
Sub-Servicer is a Servicing Function Participant, the Annual Attestation Report
and Annual Assessment Report shall be delivered to all the parties specified in
Sections 11.12 and 11.13, and if the Sub-Servicer is not a Servicing Function
Participant, the Annual Attestation Report and Annual Assessment Report shall be
delivered only to the Master Servicer. Notwithstanding the foregoing, with
respect to any calendar year for which the Sub-Servicer is not a Servicing
Function Participant, the Sub-Servicer may fulfill its obligations to deliver an
Annual Attestation Report and Annual Assessment Report by causing a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Master Servicer, to
the effect that (i) such firm has obtained a letter of representation regarding
certain matters from the management of the Sub-Servicer which includes an
assertion that the Sub-Servicer has complied with the Relevant Servicing
Criteria, and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate.
In the event that the Sub-Servicer is terminated, assigns its rights
or resigns pursuant to the terms of this Agreement, the Sub-Servicer shall
provide, and shall cause any Servicing Function Participant engaged by it
to provide, an Annual Assessment Report pursuant to this Section
3.01(c)(40), coupled with an Annual Attestation Report pursuant to this
Section 3.01(c)(40) with respect to the period of time that the
Sub-Servicer was subject to this Agreement.
(41) Section 11.14.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and shall obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the Sub-Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Sub-Servicer shall be a party, or any Person succeeding to the business of
the Sub-Servicer, shall be the successor of the Sub-Servicer hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person (i) must be a company whose
business is the origination and servicing of mortgage loans and shall be
authorized to transact business in the state or states in which the related
Mortgaged Properties it is to service are situated, (ii) must be an approved
servicer of multifamily mortgage loans for FHLMC or Xxxxxx Xxx or a HUD-Approved
Servicer, and (iii) shall assume in writing the obligations of the Sub-Servicer
under this Agreement.
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or agents of
the Sub-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
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Sub-Servicer or any such person against any
breach of any representation, warranty or covenant made herein, or failure to
perform its obligations in compliance with the Servicing Standard, or any
liability which would otherwise be imposed by reason of any breach of the terms
and conditions of this Agreement, or against any expenses or liability
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof, or against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith, or negligence in the
performance of obligations or duties hereunder. The Sub-Servicer and any
officer, employee or agent of the Sub-Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Sub-Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action unless such
action is related to its duties under this Agreement and either (i) it is
specifically required to bear the costs of such action or (ii) such action will
not, in its reasonable and good faith judgment, involve it in any ultimate
expense or liability for which it would not be reimbursed hereunder; provided,
however, that the Sub-Servicer may, with the consent of the Master Servicer,
undertake any such action which it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities for which the Master Servicer
will be liable and the Sub-Servicer shall be entitled to be reimbursed therefor
from the Master Servicer upon written demand.
Section 3.04 Sub-Servicer Not to Resign.
The Sub-Servicer shall not resign from the obligations and duties hereby
imposed on it except by sixty (60) days prior written notice to the Master
Servicer, or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Sub-Servicer. Any such determination permitting the resignation of the
Sub-Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Master Servicer, which Opinion of Counsel shall be in form and
substance acceptable to the Master Servicer.
Section 3.05 No Transfer or Assignment of Servicing.
With respect to the responsibility of the Sub-Servicer to service the
Mortgage Loans hereunder, the Sub-Servicer acknowledges that the Master Servicer
has acted in reliance upon the Sub-Servicer's independent status, the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section 3.05, except with
respect to a direct or indirect subsidiary of Wachovia which is acceptable to
Xxxxx'x as a primary servicer and is on S&P's Select Servicer List as a U.S.
Commercial Mortgage Servicer, the Sub-Servicer shall neither assign or transfer
this Agreement or the servicing hereunder nor delegate its rights or duties
hereunder or any portion thereof, nor sell or otherwise dispose of all or
substantially all of its property or assets, without the prior written approval
of the Master Servicer, which consent will not be unreasonably withheld or
delayed. Notwithstanding the foregoing, prior to any assignment or transfer by
the Sub-Servicer of this Agreement or the servicing hereunder (the
"Sub-Servicing Rights"), the Sub-Servicer shall allow the Master Servicer an
opportunity to bid on the purchase of such Sub-Servicing Rights. The
Sub-Servicer may also solicit bids from any other parties independent of the
Sub-Servicer.
Section 3.06 Indemnification.
The Master Servicer and the Sub-Servicer each agrees to and hereby does
indemnify and hold harmless the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their respective partners, controlling shareholders,
directors, officers, employees or agents) from and against any and all
liability, claim, loss, out-of-pocket cost (including reasonable attorneys'
fees), penalty, expense or damage of the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their partners, directors, officers, employees or agents)
resulting from (i) any breach by the indemnitor of a representation, warranty,
covenant, agreement or certification made by it herein or delivered by it
pursuant hereto or (ii) any willful misfeasance, bad faith or negligence by the
indemnitor in the performance of its obligations or duties hereunder. Each
indemnified party hereunder shall give prompt written notice to the indemnitor
of matters which may give rise to liability of such indemnitor hereunder;
provided, however, that failure to give such notice shall not relieve the
indemnitor of any liability except to the extent of actual prejudice. This
Section 3.06 shall survive the termination of this Agreement and the termination
or resignation of the Master Servicer or the Sub-Servicer. Notwithstanding the
foregoing, the Sub-Servicer shall not have any direct rights of indemnification
that may be satisfied out of assets of the Trust Fund.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each, an "Event of Default")
by the Sub-Servicer shall occur and be continuing, that is to say:
(i) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account or any Servicing Account, or to deposit into, or to
remit to the Master Servicer for deposit into, the Certificate Account, on
a timely basis, any amount required to be so deposited or remitted under
this Agreement which failure continues unremedied for one (1) Business Day
following the date on which a deposit was first required to be made; or
(ii) (A) the Sub-Servicer shall fail to timely deliver or cause
delivery to the Master Servicer or other parties any Annual Statement of
Compliance as required by Section 3.01(c)(39) of this Agreement, any
Annual Attestation Report (along with the consent of the accounting firm)
and Annual Assessment Report as required by Section 3.01(c)(40) of this
Agreement, any information as required by Sections 3.01(c)(35), (36) or
(38) or any Backup Certificate as required by Section 3.01(c)(37) of this
Agreement, which failure in any case continues unremedied by the Business
Day immediately preceding the day the Master Servicer is required to
deliver its certification under Section 11.08 of the Pooling and Servicing
Agreement or (B) the Depositor shall deliver a written notice to the
Master Servicer at any time prior to April 1 of the first year in which
the Trustee has filed a Form 15 with the Commission in accordance with
Article XI of the Pooling and Servicing Agreement, stating that the
Sub-Servicer has defaulted on its obligation to deliver, if and to the
extent applicable in accordance with Regulation AB and another pooling and
servicing agreement to which the Depositor is a party, any of the items
similar to those set forth in clauses (A) of this clause (v), as and when
provided under such other pooling and servicing agreement; or
(iii) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any of its other covenants or obligations
contained in this Agreement which continues unremedied for a period of 25
days (10 days in the case of a failure of the Servicer to pay the premium
for any insurance policy required to be maintained hereunder) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Sub-Servicer by the Master
Servicer; or
(iv) any failure of the part of the Sub-Servicer to (a) timely make
available and certify to the Master Servicer the information called for on
Exhibit E attached hereto as required by Section 3.01(c)(7) of this
Agreement, or (b) timely provide to the Master Servicer the Collection
Report which failure continues unremedied for one (1) Business Day; or
(v) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 3.23 of the Pooling and Servicing
Agreement which materially and adversely affects the interests of the
Master Servicer or any Class of Certificateholders or any affected holder
of any Serviced Pari Passu Companion Loan or Serviced B Note and which
continues unremedied for a period of thirty (30) days after the date on
which notice of such breach, requiring the same to be remedied, shall have
been given to the Sub-Servicer, by the Master Servicer provided, however,
if such breach is capable of being cured and the Sub-Servicer provided the
Master Servicer with an officer's certificate certifying that it has
diligently pursued and is diligently continuing to purchase a full cure,
such 30 day period will be extended an additional 30 days; or
(vi) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of its affairs, shall have been entered against
the Sub-Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of sixty (60) days; or
(vii) the Sub-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 Sub-Servicer or
of or relating to all or substantially all of its property; or
(viii) the Sub-Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make
an assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations or take any corporate action in furtherance of
the foregoing; or
(ix) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder except as
permitted by this Agreement; or
(x) the Sub-Servicer is removed from S&P's approved master servicer
list and either (a) is not reinstated within sixty (60) days of removal or
(b) any of the ratings assigned to the Certificates or the Serviced Pari
Passu Loan Securities are qualified, downgraded, or withdrawn in
connection with such removal, whichever is earlier; or
(xi) the Sub-Servicer obtains actual knowledge that Xxxxx'x has (1)
qualified, downgraded or withdrawn its rating or ratings of any class of
Serviced Companion Loan Securities, or (2) placed any class of Serviced
Companion Loan Securities on "watchlist" status in contemplation of a
rating downgrade or withdrawal (and such "watchlist" status placement
shall not have been withdrawn by Xxxxx'x within sixty (60) days of the
date when the Sub-Servicer obtained such actual knowledge) and, in the
case of either clause (1) or (2), cited servicing concerns with the
Sub-Servicer as the sole or a material factor in such rating action; or
(xii) the Sub-Servicer shall fail to deliver any Exchange Act
reporting items required to be delivered by such servicer under Article XI
of the Pooling and Servicing Agreement at the time required under such
Article, and after giving effect to all applicable grace periods and cure
periods set forth therein; or
(xiii) an Event of Default (as defined under the Pooling and
Servicing Agreement) by the Master Servicer occurs and the material cause
for any such Event of Default was the sub-servicing of the Mortgage Loans
by the Sub-Servicer under this Agreement.
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
Sub-Servicer, all of the rights and obligations of the Sub-Servicer as
Sub-Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof. From and after the receipt by the Sub-Servicer of such written
notice, all authority and power of the Sub-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 4.01, and,
without limitation, the Master Servicer is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Sub-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 Sub-Servicer agrees that if it is terminated pursuant to this
Section 4.01, it shall promptly (and in any event no later than five (5)
Business Days subsequent to its receipt of the notice of termination) provide
the Master Servicer with all documents and records (including, without
limitation, those in electronic form) requested by it to enable it to assume the
Sub-Servicer's functions hereunder, and shall cooperate with the Master Servicer
in effecting the termination of the Sub-Servicer's responsibilities and rights
hereunder and the assumption by a successor of the Sub-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 which shall
at the time be or should have been credited by the Sub-Servicer to the
Sub-Servicer Custodial Account, a Certificate Account and any Servicing Account,
or thereafter be received with respect to the Mortgage Loans (provided, however,
that the Sub-Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 3.03 of this Agreement
notwithstanding any such termination).
In addition to any other rights the Master Servicer may have hereunder, if
the Sub-Servicer fails to remit to the Master Servicer any amounts when required
to be remitted hereunder, the Sub-Servicer shall pay to the Master Servicer
interest on the amount of such late remittance at the Prime Rate, applied on a
per diem basis for each day such remittance is late (i.e., said per annum rate
divided by 365 multiplied by the number of days late); but in no event shall
such interest be greater than the maximum amount permitted by law.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-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.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Master Servicer, in addition to the
rights specified in Section 4.01 of this Agreement, shall have the right, in its
own name, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies (including the institution and
prosecution of all judicial, administrative and other proceedings and the filing
of proofs of claim and debt in connection therewith). Except as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Event of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights, obligations
and responsibilities of the Sub-Servicer shall terminate (without payment of any
penalty or termination fee): (i) upon the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan and
the disposition of all REO Property and the remittance of all funds due
hereunder; (ii) by mutual consent of the Sub-Servicer and the Master Servicer in
writing; (iii) pursuant to Section 5.02 of this Agreement; (iv) at the option of
any purchaser of one or more Mortgage Loans pursuant to the Pooling and
Servicing Agreement, upon such purchase and only with respect to such purchased
Mortgage Loan or Mortgage Loans; or (v) upon termination of the Pooling and
Servicing Agreement.
Section 5.02 Termination With Cause.
The Master Servicer may, at its sole option, terminate any rights the
Sub-Servicer may have hereunder with respect to any or all of the Mortgage
Loans, as follows:
(i) as provided in Section 4.01 of this Agreement upon the
occurrence of an Event of Default; or
(ii) if either Rating Agency (A) reduces any of the ratings assigned
by it to the Certificates (or places such ratings on "watch" status") as a
result of the sub-servicing of the Mortgage Loans by the Sub-Servicer, or
(B) advises the Master Servicer or Trustee that it will qualify,
downgrade, withdraw or place on "watch status" any of the ratings assigned
by it to the Certificates due to the continued servicing by the
Sub-Servicer.
Any notice of termination shall be in writing and delivered to the
Sub-Servicer as provided in Section 6.05 of this Agreement.
Section 5.03 Intentionally Deleted.
Section 5.04 Termination of Duties with Respect to Specially Serviced Mortgage
Loans.
The Sub-Servicer acknowledges that, at such time as any Mortgage Loan
becomes a Specially Serviced Mortgage Loan, this Agreement and the right to
service such Mortgage Loan in accordance herewith, shall be subject to the
Special Servicer's rights to service such Mortgage Loan for so long as such
Mortgage Loan continues to be a Specially Serviced Mortgage Loan.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Contemporaneously with the termination of the Sub-Servicer's
responsibilities and duties under this Agreement pursuant to Sections 3.04,
4.01, 5.01 or 5.02 of this Agreement, the Master Servicer shall (i) succeed to
and assume all of the Sub-Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor which satisfies
the criteria for a successor Sub-Servicer in Section 3.02 of this Agreement and
which shall succeed to all rights and assume all of the responsibilities, duties
and liabilities of the Sub-Servicer under this Agreement accruing following the
termination of the Sub-Servicer's responsibilities, duties and liabilities under
this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon the request of the Master Servicer, make
available its publicly available financial statements and other records relevant
to the performance of the Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either by telephone, confirmed by letter or wire as the parties
shall agree, or conducted in person, at such place as the parties shall agree.
The closing shall be subject to the execution and delivery of the Pooling
and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following documents:
(a) to be provided by the Sub-Servicer:
(i) this Agreement executed by the Sub-Servicer;
(ii) an Officer's Certificate of the Sub-Servicer, dated the Closing
Date and in the form of Exhibit B hereto, including all attachments
thereto;
(iii) the account certifications in the form of Exhibit F hereto
required by Section 3.01(c)(3), (5) & (6) of this Agreement, fully
completed; and
(b) to be provided by the Master Servicer:
(i) this Agreement executed by the Master Servicer; and
(ii) the Mortgage Loan Schedule, with one copy to be attached to
each counterpart of this Agreement as Exhibit A hereto; and
(iii) the Pooling and Servicing Agreement substantially in the form
of Exhibit C hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Sub-Servicer:
if by U.S. Mail:
Wachovia Bank, National Association
Structured Products Servicing
0000 Xxxxxxxx Xxxxx
XXX0-XX0000
Xxxxxxxxx, XX 00000-0000
Fax No. (000) 000-0000
Reference: GECMC Commercial Mortgage Trust Series
2007-C1
if by overnight delivery:
Wachovia Bank, National Association
Commercial Real Estate Services
0000 Xxxxxxxx Xxxxx
XXX0-XX0000
Xxxxxxxxx, XX 00000-0000
Reference: GECMC Commercial Mortgage Trust Series
2007-C1
in each case, with a copy to:
Xxxx Xxxxxxxx
c/o Wachovia Bank, National Association
000 X. Xxxxxxx Xx., XX-00
Xxxxxxxxx, XX 00000-0000
Reference: GECMC Commercial Mortgage Trust Series
2007-C1
(ii) if to the Master Servicer:
KeyCorp Real Estate Capital Markets, Inc..
000 Xxxx Xxxxxx, Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax No. 000-000-0000
with a copy to:
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Fax No. 000-000-0000
with a copy to:
Polsinelli Xxxxxxx Xxxxxxxx Suelthaus PC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Fax No. 000-000-0000
or such other address as may hereafter be furnished to the other party by like
notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York, except
to the extent preempted by Federal Law.
Section 6.09 Reserved.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is conveying,
and the Sub-Servicer is receiving, only a contract for servicing the Mortgage
Loans. Accordingly, the parties hereby acknowledge that the Trustee remains the
sole and absolute beneficial owner of the Mortgage Loans and all rights related
thereto.
Section 6.11 Third Party Beneficiary.
The Trustee, for the benefit of the Certificateholders, shall be a third
party beneficiary under this Agreement, provided that, except to the extent the
Trustee or its designee assumes the obligations of the Master Servicer hereunder
as contemplated by Section 6.12 of this Agreement, none of the Trustee, the
Trust Fund, any successor Master Servicer, or any Certificateholder shall have
any duties under this Agreement or any liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable
by the Sub-Servicer and the Master Servicer and the respective successors and
assigns of the Sub-Servicer and the Master Servicer. This Agreement shall not be
assigned, pledged or hypothecated by the Sub-Servicer to a third party except as
otherwise specifically provided for herein. If the Master Servicer shall for any
reason no longer act in such capacity under the Pooling and Servicing Agreement,
the Trustee or its designee may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of the
Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference only,
and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the Sub-Servicer
and the Master Servicer. No amendment to the Pooling and Servicing Agreement
that purports to change the rights or obligations of the Sub-Servicer hereunder
shall be effective against the Sub-Servicer without the express written consent
of the Sub-Servicer.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the Sub-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.
KEYCORP REAL ESTATE CAPITAL MARKETS, INC
By: /s/ Xxxxx XXxxxxx
----------------------------------------
Name: Xxxxx XXxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx III
----------------------------------------
Name: Xxxxxx Xxxxxx III
Title: Associate
EXHIBIT A
GECMC 2007-C1
MORTGAGE LOAN SCHEDULE
Property Name Cut-Off Balance Subservicing Fee
------------- --------------- ----------------
Wolfchase Galleria $ 225,000,000.00 0.01 (1 bp)
Galleria Officentre $ 89,600,000.00 0.01 (1 bp)
Sealy NW Business Center $ 28,750,000.00 0.05 (5 bps)
Xxxxxxx Pointe $ 16,600,000.00 0.01 (1 bp)
Xxxxxx Providence $ 14,455,000.00 0.01 (1 bp)
Bravo Estates $ 14,200,000.00 0.01 (1 bp)
Juniper Portfolio $ 13,880,000.00 -
Juniper Portfolio-Cumberland $ 9,600,000.00 0.01 (1 bp)
Juniper Portfolio-Lakehurst $ 4,280,000.00 0.01 (1 bp)
The Pointe at Wimbledon $ 12,000,000.00 0.01 (1 bp)
Rialto I & II MHCs $ 11,850,000.00 0.01 (1 bp)
Highlands MHC $ 11,760,000.00 0.01 (1 bp)
Raymour and Xxxxxxxx- Xxxx of Prussia $ 10,675,330.29 0.01 (1 bp)
Remcon Medical Office Portfolio $ 10,563,000.00 0.01 (1 bp)
Courtyard Chicago Glenview $ 10,500,000.00 0.01 (1 bp)
0000 Xxxx Xxxx $ 10,450,000.00 0.01 (1 bp)
Tri Park Portfolio $ 10,300,000.00 0.01 (1 bp)
Nova Stor Self Storage $ 9,800,000.00 0.01 (1 bp)
Garden Gate Apartments $ 9,400,000.00 0.01 (1 bp)
One Airport Center $ 9,150,000.00 0.01 (1 bp)
Summer & Bedford Office $ 9,000,000.00 0.01 (1 bp)
Club Marina MHC $ 8,575,000.00 0.01 (1 bp)
North Valley Self Storage $ 7,760,000.00 0.01 (1 bp)
Innovation Court Business Center $ 7,600,000.00 0.01 (1 bp)
North Empire Self Storage $ 7,600,000.00 0.01 (1 bp)
Xxxxx Building $ 7,560,000.00 0.01 (1 bp)
Flying Star Retail Portfolio $ 6,982,626.88 0.01 (1 bp)
Downtown Plaza $ 6,513,000.00 0.01 (1 bp)
Xxxx MHP $ 6,400,000.00 0.01 (1 bp)
Wachovia Plaza Roll Up $ 6,328,622.65 0.01 (1 bp)
Meadowbrook Apartments $ 6,302,743.56 0.01 (1 bp)
Conch Plaza $ 6,250,000.00 0.01 (1 bp)
Tamarack East MHC $ 6,250,000.00 0.01 (1 bp)
Village Xxxx MHC $ 6,150,000.00 0.01 (1 bp)
Powers Professional Campus $ 6,000,000.00 0.01 (1 bp)
Portland Fairview RV Resort $ 5,838,989.30 0.01 (1 bp)
Crystal Pointe MHC $ 5,600,000.00 0.01 (1 bp)
Rivermont Apartments $ 5,540,000.00 0.06 (6 bps)
Raymour and Xxxxxxxx - Poughkeepsie, NY $ 5,302,211.92 0.01 (1 bp)
Harbor Landing $ 5,250,000.00 0.01 (1 bp)
Hidden Village MHC $ 5,250,000.00 0.01 (1 bp)
Park Apartments Phases I & II $ 5,213,841.95 0.01 (1 bp)
Claycreek Mini Storage $ 5,040,000.00 0.01 (1 bp)
JMT Warehouse $ 4,905,000.00 0.01 (1 bp)
Lady Lake Shoppes $ 4,696,000.00 0.01 (1 bp)
Lost Springs Apartments $ 4,629,112.01 0.01 (1 bp)
El Monte MHC $ 4,584,000.00 0.01 (1 bp)
Clinton Parkway $ 4,500,000.00 0.01 (1 bp)
Xxxxxxxxx Office Building $ 4,500,000.00 0.01 (1 bp)
Xx. Xxx Xxxx Self Storage $ 4,500,000.00 0.01 (1 bp)
Xxxxx Industrial Portfolio $ 4,300,000.00 0.01 (1 bp)
Bontierra Road $ 4,280,000.00 0.01 (1 bp)
XxXxxx Oaks MHC $ 4,186,218.60 0.01 (1 bp)
Indian Xxxxx $ 4,100,000.00 0.01 (1 bp)
Scioto Estates MHC $ 4,100,000.00 0.01 (1 bp)
Granite Mall $ 3,800,000.00 0.01 (1 bp)
Walgreens-Grove, OK $ 3,760,000.00 0.01 (1 bp)
WSG- Citrus Park $ 3,685,846.78 0.01 (1 bp)
Viking Estates MHC $ 3,625,000.00 0.01 (1 bp)
Space Savers NW $ 3,592,669.48 0.01 (1 bp)
Parkside Station $ 3,550,000.00 0.01 (1 bp)
Briarwood MHC $ 3,100,000.00 0.01 (1 bp)
Scotts Corner $ 2,986,725.04 0.01 (1 bp)
Xxxxx Xxxx Building $ 2,800,000.00 0.01 (1 bp)
Doubletree I Apartments $ 2,290,192.26 0.01 (1 bp)
Kensington Town Center $ 2,245,811.85 0.01 (1 bp)
Whispering Pines MHC $ 2,040,000.00 0.01 (1 bp)
Paradise View Apartments $ 1,802,917.31 0.01 (1 bp)
Xxxxxx Manor $ 1,750,000.00 0.01 (1 bp)
EXHIBIT B
---------
SUB-SERVICER'S OFFICER'S CERTIFICATE
[_______________________] (GECMC 2007-C1)
I, ______________________________, hereby certify that I am the duly
elected __________________________ of [Sub-Servicer], a corporation organized
under the laws of the State of ______________________ (the "Sub-Servicer") and
further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete copy of
the articles of incorporation of the Sub-Servicer which are in full force and
effect on the date hereof and which have been in effect without amendment,
waiver, rescission or modification since _______________________________.
2. Attached hereto as Exhibit 2 is a true, correct and complete copy of
the by-laws of the Sub-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 Sub-Servicer, issued within ten days of the date hereof, and no
event has occurred since the date thereof which would impair such standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete copy of
the corporate resolutions of the Board of Directors of the Sub-Servicer
authorizing the Sub-Servicer to execute and deliver the Sub-Servicing Agreement,
dated as of _________, 200__ (the "Sub-Servicing Agreement"), by and between the
Sub-Servicer and KeyCorp Real Estate Markets, Inc. and such resolutions are in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification since _______________.
5. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer of or compliance by the Sub-Servicer with the
Sub-Servicing Agreement or the consummation of the transactions contemplated by
the Sub-Servicing Agreement; or (ii) any required consent, approval,
authorization or order has been obtained by the Sub-Servicer.
6. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Sub-Servicing Agreement, conflicts or will
conflict with or results or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Sub-Servicer, the terms
of any indenture or other agreement or instrument to which the Sub-Servicer is a
party or by which it is bound or to which it is subject, or any statute or
order, rule, regulation, writ, injunction or decree of any court, governmental
authority or regulatory body to which the Sub-Servicer is subject or by which it
is bound.
7. There is no action, suit, proceeding or investigation pending or to the
best of my knowledge threatened against the Sub-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 Sub-Servicer or in any material impairment of the right or ability
of the Sub-Servicer to carry on its business substantially as now conducted or
in any material liability on the part of the Sub-Servicer or which would draw
into question the validity of the Sub-Servicing Agreement or of any action taken
or to be taken in connection with the transactions contemplated hereby, or which
would be likely to impair materially the ability of the Sub-Servicer to perform
under the terms of the Sub-Servicing Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an officer or
representative of the Sub-Servicer, signed the Sub-Servicing Agreement and any
other document delivered prior hereto or on the date hereof in connection with
the Sub-Servicing Agreement, was, at the respective times of such signing and
delivery, and is now, a duly elected or appointed, qualified and acting officer
or representative of the Sub-Servicer, who holds the office set forth opposite
his or her name on Exhibit 5, and the signatures of such persons appearing on
such documents are their genuine signatures.
9. The Sub-Servicer is duly authorized to engage in the transactions
described and contemplated in the Sub-Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Sub-Servicer.
Dated: ______________________ By:
--------------------------------------
[Seal] Name: ________________________________
Title: [Vice] President
I, _______________________, an [Assistant] Secretary of [Sub-Servicer]
hereby certify that ___________________________ is the duly elected, qualified
and acting [Vice] President of the Sub-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: [Assistant] Secretary
EXHIBIT B
---------
to
Sub-Servicer's Officer's Certificate
Name Title Signature
________________________
________________________
________________________
________________________
EXHIBIT C
---------
POOLING AND SERVICING AGREEMENT
Previously Delivered
EXHIBIT D
---------
EXHIBIT E
---------
QUARTERLY SERVICING CERTIFICATION
Sub-Servicer: _________________________________________
RE: GECMC Series 2007-C1
Pursuant to the Servicing Agreement(s) between KeyCorp Real Estate Markets, Inc.
and the above referenced Servicer, we certify that with respect to each mortgage
loan serviced by us for KeyCorp Real Estate Markets, Inc. that as of the quarter
ending _____________ except as otherwise noted below:
o All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged
premises, if any, which would be delinquent if not paid, have been paid.
o All required insurance policies are in full force and effect on the mortgaged
premises in the form and amount and with the coverage required by the loan
documents.
o On all required insurance policies, the loss payee is in the name of the
Trust.
o All UCC Financing Statements have been renewed prior to expiration.
o All reserves are maintained and disbursed in accordance with the loan
documents and no expired reserves exist.
o All letters of credit are transferred to the Trust as beneficiary and are
properly renewed.
o Lockboxes are being serviced in accordance with loan documents.
o All required loan documents, third party reports and underwriting files are
complete and all applicable loan documents have been properly assigned to the
Trust.
EXCEPTIONS: __________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
EXHIBIT F
---------
FORM OF ACCOUNT CERTIFICATION
GECMC 2007-C1
Securitization: _______________________________________________________________
Sub Servicer: _________________________________________________________________
_______ New Account _______ Change of Account Information
Indicate purpose of account (check all that apply):
_______ Principal & Interest _______ Deposit Clearing
_______ Taxes & Insurance _______ Disbursement Clearing
_______ Reserves (non-interest bearing) _______ Suspense
_______ Reserves (interest bearing)
Account Number: _______________________________________________________________
Account Name: _________________________________________________________________
Depository Institution (and Branch): ___________________________________________
Name: _________________________________________________________________
Street: _______________________________________________________________
City, State, Zip: _____________________________________________________
Rating Agency: _____________________________ Rating: ______________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by: ___________________________________________________________________
Signature: _____________________________________________________________________
Title: _________________________________________________________________________
Date: __________________________________________________________________________
Telephone: _________________________________________ Fax: _____________________
EXHIBIT G
---------
FORM OF
COLLECTION REPORT
[Series]
Month of ________
------------------------------------------------------------------------------------------------------------------------------------
Subservicers Scheduled Scheduled Scheduled
Master Loan Due Mtg Net Beginning Schedule Principal
Services # Date Rate Mtg Rate Balance P&I Amount Payment
Loan #
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Scheduled Curtailed Prepayment Other Actual
Master Interest Service Curtailed Prepayment Interest Principal Principal
Services Payment Fee Prepayment Date Excess/Short Adjustment Payment
Loan #
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Actual Net Actual Payment
Master Interest Service Late Assumption Additional Loan Distribution
Services Payment Fees Charges Fees Fees Status Amount
Loan #
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Actual Loan Bal Next Total Reserve Bal
Master Ending As of Payment As Of Date of
Services Balance Distribution Date Due Prior Month End Maturity
Loan #
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Loan Status
A - payment not received but still in
grace period
B - late payment but less than 1 month
delinquent
O - Current
1 - One month delinquent
2 - Two months delinquent
3 - Three months delinquent
4 - Assumed Schedule Payment
5 - Prepaid in Full
6 - Specially Serviced
7 - in foreclosure
9 - REO
10 - DPO
11 - Modification
Prepared By
Approved By
EXHIBIT H
---------
FORM OF CERTIFICATE OF INSURANCE
Sub-Servicer: _______________________________________
RE: GECMC Series 2007-C1
Pursuant to the Sub-Servicing Agreement(s) between KeyCorp Real Estate Markets,
Inc. and [Sub-Servicer], we certify with respect to each Mortgage Loan serviced
by us for KeyCorp Real Estate Markets, Inc. that all required insurance policies
are in full force and effect on the mortgaged premises in the form and amount
and with the coverage required by the Servicing Agreement(s).
EXCEPTIONS: __________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
________________________________ ______________________________
Servicing Officer Date
EXHIBIT I
NEW LEASE INFORMATION
Loan # __________________ Property Type: ________________ Tenant: ______________
Property Name/Address: _________________________________________________________
Term (Years, Months): _______ Sq Ft Gross Rentable: __________ Net Rentable ____
Begin Lease Date: ________________________________________ Retail
End Lease Date: __________________________________________ Office
Occupancy Date (if diff): ________________________________ Other
Minimum Rent (S/SF/YR)
(Mo/Yr) Escalation: CPI Other
Change to on
Change to on
Change to on
Change to on
Percentage Rent
% Amount For % Rent Due:
For Monthly
Up to Quarterly
Up to Annually
Breakpoint (S/Yr) Sales Report Due: ______________
(Mo/Yr)
Change to on Monthly
Change to on Quarterly
Change to on Annually
Recoveries
Taxes ____________________________ Per _______________________
Insurance Per ________________________
Cam Per ________________________
HVAC Per ________________________
Adver/Promo Per ________________________
Per ________________________
Per ________________________
Management Per ________________________
Renewal Options
Term _________________________________ SF _________________________
Minimum rent _________________________ Gross Rentable _____________
% Rent _______________________________ Net Rentable _______________
Landlord Costs
Alterations: _____________________________________________________
Commissions: ____________________________________________________
Moving Allowances: ______________________________________________
Buyout Clauses: _________________________________________________
Other: _________________________________________________________
Building Insurance Requirements
Tenant maintains fire & ED on building(s); will need coverage to
renew
Does not furnish building coverage
General liability naming landlord mortgagee as additional insured;
will need coverage for review
General liability without mentioning landlord's mortgagee; do not
need coverage
Waiver of Subrogation
N/A
Mutual; will need endorsement
Landlord only; will need endorsement
Tenant only; do not need endorsement
Comments:
Attachments:
Original Lease
Original Subordination Agreement
EXHIBIT J
---------
MONTHLY SERVICING ACCOUNTS CERTIFICATION
Servicer: ______________________________________
RE: GECMC Series 2007-C1
Pursuant to the Servicing Agreement(s) between KeyCorp Real Estate Markets, Inc.
and the above named Servicer, I certify with respect to each transaction
serviced by us, as noted above, for KeyCorp Real Estate Markets, Inc. that as of
________________ (Determination Date) all collection accounts and servicing
accounts have been properly reconciled and the reconciliations have been
reviewed and approved by Servicer's management, except as otherwise noted below:
EXCEPTIONS: __________________________________________
______________________________________________________
______________________________________________________
_________________________ ___________________________
Servicing Officer Date
ARTICLE I DEFINITIONS.................................................
Section 1.01 Defined Terms.........................................
ARTICLE II MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER TO PERFORM
SERVICING RESPONSIBILITIES..................................
Section 2.01 Contract for Servicing; Possession of Mortgage
Loan Documents........................................
Section 2.02 Sub-Servicer Certification............................
ARTICLE III SERVICING OF THE MORTGAGE LOANS.............................
Section 3.01 Sub-Servicer to Service...............................
Section 3.02 Merger or Consolidation of the Sub-Servicer...........
Section 3.03 Limitation on Liability of the Sub-Servicer and
Others................................................
Section 3.04 Sub-Servicer Not to Resign............................
Section 3.05 No Transfer or Assignment of Servicing................
Section 3.06 Indemnification.......................................
ARTICLE IV DEFAULT.....................................................
Section 4.01 Events of Default.....................................
Section 4.02 Waiver of Defaults....................................
Section 4.03 Other Remedies of Master Servicer.....................
ARTICLE V TERMINATION.................................................
Section 5.01 Termination...........................................
Section 5.02 Termination With Cause................................
Section 5.03 Intentionally Deleted.................................
Section 5.04 Termination of Duties with Respect to Specially
Serviced Mortgage Loans...............................
ARTICLE VI MISCELLANEOUS...............................................
Section 6.01 Successor to the Sub-Servicer.........................
Section 6.02 Financial Statements..................................
Section 6.03 Closing...............................................
Section 6.04 Closing Documents.....................................
Section 6.05 Notices...............................................
Section 6.06 Severability Clause...................................
Section 6.07 Counterparts..........................................
Section 6.08 Governing Law.........................................
Section 6.09 Protection of Confidential Information................
Section 6.10 Intention of the Parties..............................
Section 6.11 Third Party Beneficiary...............................
Section 6.12 Successors and Assigns; Assignment of Agreement.......
Section 6.13 Waivers...............................................
Section 6.14 Exhibits..............................................
Section 6.15 General Interpretive Principles.......................
Section 6.16 Complete Agreement....................................
Section 6.17 Further Agreement.....................................
Section 6.18 Amendments............................................
EXHIBIT A MORTGAGE LOAN SCHEDULE......................................
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE........................
EXHIBIT C POOLING AND SERVICING AGREEMENT.............................
EXHIBIT D RESERVED
EXHIBIT E QUARTERLY SERVICING CERTIFICATION...........................
EXHIBIT F FORM OF ACCOUNT CERTIFICATION...............................
EXHIBIT G FORM OF COLLECTION REPORT...................................
EXHIBIT H FORM OF CERTIFICATE OF INSURANCE............................
EXHIBIT I NEW LEASE INFORMATION.......................................
EXHIBIT J MONTHLY SERVICING ACCOUNTS CERTIFICATION....................
