Exhibit 99.8
Wachovia Primary Servicing Agreement
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SUB-SERVICING AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Sub-Servicer,
Dated as of May 1, 2007
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Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ14
(Beacon Seattle & DC Portfolio Loan)
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TABLE OF CONTENTS
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Section
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms...........................................
SECTION 1.02. General Interpretive Principles.........................
ARTICLE II
CONTRACT FOR PRIMARY SERVICING; DOCUMENTS; REPRESENTATIONS
SECTION 2.01. Contract for Primary Servicing..........................
SECTION 2.02. Possession of Mortgage Loan Documents...................
SECTION 2.03. Representations, Warranties and Covenants of the
Master Servicer.........................................
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. General Provisions; Servicing Duties....................
SECTION 3.02. Sub-Servicer Compensation...............................
ARTICLE IV
ANNUAL COMPLIANCE DOCUMENTS; REGULATION AB
SECTION 4.01. Regulation AB Compliance and Related Provisions of
the PSA.................................................
SECTION 4.02. Additional Requirements.................................
SECTION 4.03. Indemnification.........................................
ARTICLE V
REGARDING THE MASTER SERVICER AND SUB-SERVICER
SECTION 5.01. Merger or Consolidation of the Sub-Servicer.............
SECTION 5.02. Assignment; Mutual Termination; and Resignation.........
SECTION 5.03. Termination and Resignation of the Master Servicer
under the PSA...........................................
SECTION 5.04. Indemnification; Limitation on Liability................
ARTICLE VI
DEFAULT
SECTION 6.01. Events of Default.......................................
SECTION 6.02. Other Remedies..........................................
SECTION 6.03. Waiver of Defaults......................................
ARTICLE VII
TERMINATION
SECTION 7.01. Termination.............................................
SECTION 7.02. Transfer Following Termination, Assignment or
Resignation.............................................
SECTION 7.03. Specially Serviced Mortgage Loans.......................
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Severability............................................
SECTION 8.02. Rights Cumulative; Waivers..............................
SECTION 8.03. Headings................................................
SECTION 8.04. Construction............................................
SECTION 8.05. Successors and Assigns..................................
SECTION 8.06. Prior Understandings....................................
SECTION 8.07. Counterparts............................................
SECTION 8.08. Governing Law; Jurisdiction.............................
SECTION 8.09. Notices.................................................
SECTION 8.10. Amendment...............................................
SECTION 8.11. Other...................................................
SECTION 8.12. Benefits of Agreement...................................
EXHIBITS
EXHIBIT A Officer's Certificate
EXHIBIT B Form of Remittance Report
EXHIBIT C Form of Loan Status Reports
EXHIBIT D Form of Quarterly Servicing Accounts Reconciliation
Certification
EXHIBIT E Form of Day One Report
SUB-SERVICING AGREEMENT
This Sub-Servicing Agreement (this "Agreement"), is dated and
effective as of May 1, 2007, by and between XXXXX FARGO BANK, NATIONAL
ASSOCIATION, and each of its successors and assigns (the "Master Servicer"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, and its successors and assigns, as
Sub-Servicer (the "Sub-Servicer").
Preliminary Statement
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Capmark Finance Inc., as Capmark master servicer, Prudential Asset
Resources, Inc., as Prudential master servicer, the Master Servicer, as Xxxxx
Fargo master servicer, Centerline Servicing, Inc. as special servicer (together
with its successors and assigns in such latter capacity as Special Servicer, the
"Special Servicer"), LaSalle Bank National Association, as paying agent
(together with its successors and assigns in such capacity, the "Paying Agent"),
certificate registrar, authenticating agent and custodian, and The Bank of New
York Trust Company, National Association, as trustee (together with its
successors and assigns in such capacity, the "Trustee"), have entered into a
Pooling and Servicing Agreement, dated as of May 1, 2007, relating to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ14 (as amended, from time to time, the "Pooling and Servicing Agreement"
or "PSA");
WHEREAS, the Master Servicer desires that the Sub-Servicer act as
Sub-Servicer with respect to the mortgage loan secured by the Mortgaged Property
identified as "Beacon Seattle & DC Portfolio" on the Mortgage Loan Schedule that
forms part of the PSA (the "Beacon Seattle & DC Portfolio Trust Mortgage Loan")
and the related "serviced companion loans" (as defined in the PSA) related to
the Beacon Seattle & DC Portfolio Trust Mortgage Loan (such companion loans and
the Beacon Seattle & DC Portfolio Trust Mortgage Loan, the "Mortgage Loans") and
provide, on behalf of the Master Servicer, the necessary servicing of the
Mortgage Loans performed in a manner consistent with the Servicing Standard,
this Agreement and the PSA from the Closing Date until this Agreement is
terminated in accordance with its terms;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Master Servicer and the Sub-Servicer hereby
agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01. All capitalized terms not otherwise defined herein shall have the
meanings set forth in the PSA (except such terms shall not be construed to
related to any mortgage loans other than the Mortgage Loans).
"Agreement" shall have the meaning set forth in the introductory
paragraph hereof.
"Certificateholders" shall mean the holders of the commercial
mortgage pass-through certificates issued pursuant to the PSA.
"Closing Date" shall mean May 30, 2007.
"Companion Holder" shall mean the holder of a Companion Loan.
"Companion Loan" shall mean a Mortgage Loan other than the Beacon
Seattle & DC Portfolio Trust Mortgage Loan.
"Companion Loan Remittance Date" shall mean, with respect to each
Companion Loan, the Sub-Servicer Remittance Date or, if the applicable
Intercreditor Agreement or the PSA requires that a remittance be made to the
related Companion Holder on a date that is other than the Sub-Servicer
Remittance Date, such other date.
"Companion Loan Report Date" shall mean, with respect to each
Companion Loan and any report required to be delivered to the holder of such
Companion Loan, the date when such report is required to be delivered to the
holder of such Companion Loan under the PSA and the Intercreditor Agreements.
"Companion Loan Securities" shall mean, with respect to each
Companion Loan, any class of securities backed by such Companion Loan.
"Depositor" shall have the meaning set forth in the Preliminary
Statement hereof.
"Event of Default" shall have the meaning set forth in Section
6.01(a) hereof.
"Intercreditor Agreements" shall mean, collectively, (a) that
certain Intercreditor Agreement, dated as of May 23, 2007, among Xxxxxx Xxxxxxx
Mortgage Capital Inc., as initial note a-1 holder, initial note A-2 holder and
initial note A-3 holder and as initial agent, Bear Xxxxxxx Commercial Mortgage,
Inc., as initial note A-4 holder, initial note A-5 holder and initial note B-1
holder, and Wachovia Bank, National Association, as initial note A-6 holder and
initial note A-7 holder and (b) each agreement among noteholders, co-lender
agreement, intercreditor agreement or other similar agreement that is executed
between any holder of one or more Mortgage Loans, on the one hand, and any
holder of one or more other Mortgage Loans, on the other, and a copy of which is
delivered to the Sub-Servicer. For the avoidance of doubt, "Intercreditor
Agreement" excludes the mezzanine intercreditor agreement by which the holders
of the Mortgage Loans, on the one hand, and the holder of the mezzanine
indebtedness related to the Mortgage Loans, on the other, are bound.
"Master Servicer" shall have the meaning set forth in the
introductory clause hereof.
"Mortgage Loans" shall have the meaning set forth in the Preliminary
Statement hereof.
"Other Securitization Depositor" shall mean the depositor under any
Other Securitization Transaction.
"Other Securitization Transaction" shall mean a commercial mortgage
loan securitization transaction in which a trust fund acquires a Companion Loan.
"Other Securitization Trust" shall mean the trust established under
any Other Securitization Transaction.
"Pooling and Servicing Agreement" or "PSA" shall have the meaning
set forth in the Preliminary Statement hereof.
"Special Servicer" shall have the meaning set forth in the
Preliminary Statement hereof.
"Subject Securitization Transaction" shall mean the securitization
transaction effected under the PSA.
"Sub-Servicer" shall have the meaning set forth in the introductory
clause hereof.
"Sub-Servicer Certificate Account" shall mean an account which is an
Eligible Account established by Sub-Servicer for the purposes set forth in this
Agreement in the name of "Wachovia Bank, National Association, as Sub-Servicer
for Xxxxx Fargo Bank, National Association, as Xxxxx Fargo Master Servicer for
The Bank of New York Trust Company, National Association, as Trustee for the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ14."
"Sub-Servicer Escrow Account" shall mean an "Escrow Account" (as
defined in the PSA) maintained by the Sub-Servicer with respect to the Mortgage
Loans.
"Sub-Servicer Remittance Date" shall mean, with respect to any
calendar month, the second Business Day following the Determination Date
occurring in such month.
"Sub-Servicing Fee": For each calendar month, as to each Mortgage
Loan, an amount equal to the portion of the interest accrued during such
calendar month on such Mortgage Loan at a rate per annum equal to the
Sub-Servicing Fee Rate and on the same interest accrual basis, for the same
period and on the same principal balance on which the Master Servicer's "master
servicing fee" accrues with respect to such Mortgage Loan under the PSA.
"Sub-Servicing Fee Rate": With respect to each Mortgage Loan, a rate
per annum equal to 0.01% (one basis point).
"Sub-Subservicer" shall mean a "Sub-Servicer" within the meaning of
the PSA.
"Trustee" shall have the meaning set forth in the Preliminary
Statement hereof.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well as
the singular, and the use of any gender herein shall be deemed to include
the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby" and
other words of similar import refer to this Agreement as a whole and not to
any particular provision; and
(vi) the terms "include" and "including" shall mean without limitation
by reason of enumeration.
ARTICLE II
CONTRACT FOR PRIMARY SERVICING; DOCUMENTS; REPRESENTATIONS
SECTION 2.01. Contract for Primary Servicing.
The Master Servicer, by execution and delivery of this Agreement,
does hereby contract with the Sub-Servicer, and the Sub-Servicer, by execution
and delivery of this Agreement, does hereby contract with the Master Servicer,
subject to the terms of this Agreement, for the primary servicing of the
Mortgage Loans by the Sub-Servicer, such primary servicing to commence on the
Closing Date. Simultaneously with such execution and delivery, the parties
hereby acknowledge the provisions of the PSA, and the Sub-Servicer shall deliver
to the Master Servicer an Officer's Certificate of the Sub-Servicer,
substantially in the form of Exhibit A hereto, including all attachments
thereto.
SECTION 2.02. Possession of Mortgage Loan Documents.
On and after the Closing Date, the Sub-Servicer shall hold any
portion of the Mortgage File as is in the possession of the Sub-Servicer and any
portion of the documents (other than documents required to be part of the
related Mortgage File) that relate to the origination and servicing of any
Mortgage Loan and reasonably necessary for the ongoing administration and/or
servicing of the Mortgage Loans (such documents, the "Servicer Mortgage File")
as are in the possession of the Sub-Servicer in trust, on behalf of the Master
Servicer for the benefit of the Trustee and the Certificateholders. The
Sub-Servicer's possession of any portion of the Mortgage File or Servicer
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 Mortgage Loans pursuant to this Agreement, and such retention and
possession by the Sub-Servicer shall be in a custodial capacity only. Upon
written request, the Sub-Servicer shall reasonably promptly forward to the
Master Servicer copies of such documents then in the possession of the
Sub-Servicer. Notwithstanding the foregoing, the Sub-Servicer shall be entitled
to retain in its possession at all times a photocopy of the Mortgage File
documents with respect to the Mortgage Loans. Any portion of the Mortgage File
or Servicer Mortgage File retained by the Sub-Servicer shall be segregated from
all assets of the Sub-Servicer and shall be identified to reflect clearly the
ownership of the Mortgage Loans by the Trustee, on behalf of the
Certificateholders, and by the Companion Holders. The Sub-Servicer shall release
from its custody any portion of the Mortgage File or Servicer Mortgage File only
in accordance with this Agreement and the PSA.
SECTION 2.03. Representations, Warranties and Covenants of the
Master Servicer.
(a) The Sub-Servicer hereby represents and warrants to the Master
Servicer and to the Trustee, for its own benefit and the benefit of the
Certificateholders, to the Depositor and to each Companion Holder, as of the
Closing Date, that:
(i) It is a national banking association duly organized under the laws
of the United States of America; and shall be and thereafter remain, in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect the Sub-Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement;
(ii) The Sub-Servicer has the full power and authority to execute,
deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Sub-Servicer has duly and
validly authorized the execution, delivery and performance of this
Agreement and this Agreement has been duly executed and delivered by the
Sub-Servicer; and this Agreement, assuming the due authorization, execution
and delivery thereof by the Master Servicer, evidences the valid and
binding obligation of the Sub-Servicer enforceable against the Sub-Servicer
in accordance with its terms subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, receivership
and other similar laws affecting creditors' rights generally as from time
to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(iii) The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement;
(iv) No litigation is pending or, to the Sub-Servicer's knowledge,
threatened, against it, that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations
hereunder in accordance with the terms hereof;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder;
(vi) The performance of the services by the Sub-Servicer contemplated
by this Agreement are in the ordinary course of business of the
Sub-Servicer and the Sub-Servicer possesses all licenses, permits and other
authorizations necessary to perform its duties hereunder;
(vii) It has errors and omissions insurance coverage that is in full
force and effect and complies with the requirements of Section 3.01(c)
hereof; and
(viii) In its capacity as interim Master Servicer of the Mortgage
Loans prior to the date hereof, the Sub-Servicer has serviced the Mortgage
Loans in accordance with their terms and in accordance with any interim
servicing agreement applicable to such Mortgage Loans at all relevant times
during which it was interim Master Servicer.
(b) It is understood and agreed that the representations and
warranties set forth in Section 2.03(a) shall survive the Closing Date. Upon
discovery by the Sub-Servicer of a breach of any of such representations and
warranties, the Sub-Servicer shall give prompt written notice to the Master
Servicer.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. General Provisions; Servicing Duties.
(a) The Sub-Servicer, as an independent contractor, shall perform
its servicing and administrative duties hereunder for and on behalf of the Trust
and for the benefit of the Certificateholders and the Companion Holders as a
collective whole, in a manner consistent with the Servicing Standard and the
requirements, guidelines, procedures and restrictions imposed upon the Master
Servicer under the relevant sections of the PSA. Under no circumstance shall the
Sub-Servicer make or have an obligation to make any Advances. Except as provided
herein, the Sub-Servicer shall pay all expenses incurred by it in connection
with servicing activities hereunder, including the fees of any sub-subservicers
retained by it. The relationship of the Sub-Servicer to the Master Servicer
under this Agreement is intended by the parties to be that of an independent
contractor and not of a joint venturer, partner or agent.
(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
PSA specifically incorporated herein pursuant to Section 3.01(c) of this
Agreement (the "Incorporated Sections"), as modified and supplemented 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, the Paying Agent 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 PSA to the extent that the Sub-Servicer is acting on behalf of the
Master Servicer hereunder and except as otherwise set forth herein. Except as
otherwise set forth below, for purposes of the Sub-Servicer's duties under this
Agreement, references to the Master Servicer in the Incorporated Sections
(whether such references are express references to the "Xxxxx Fargo Master
Servicer", generic references to the "applicable Master Servicer" or otherwise)
shall be deemed to be references to the Sub-Servicer hereunder; provided,
however, for the avoidance of doubt, the parties hereto intend that provisions
of the PSA relating solely to a "master servicer" other than the Master Servicer
shall be disregarded for purposes of the Sub-Servicer's duties hereunder (such
modification of the Incorporated Sections, construed in accordance with such
proviso, shall be referred to herein as the "References Modification"). For the
avoidance of doubt, in no event shall the Master Servicer have any liability to
the Sub-Servicer for the failure of any of the Trustee, the Depositor, the
Underwriters, the Rating Agencies, the Paying Agent, the Certificateholders or
the Companion Holders to perform any obligation imposed on such Person under the
PSA.
(c) The following Sections of the PSA, 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 and
supplemented as set forth below:
(i) Sections 1.2 through 1.6 and the third sentence of Section 4.6(c)
(insofar as such provisions affect the activities of the Sub-Servicer
hereunder);
(ii) Section 2.2 and Section 2.3(a);
(iii) Section 5.1(e), (f) and (g); provided, however, that (a)
references in each such section to the Master Servicer's Certificate
Account shall be construed to refer to the Sub-Servicer Certificate Account
and (b) the statement contemplated by Section 5.1(g) shall be delivered to
the Master Servicer (and not to the Special Servicer) within ten days
following the first anniversary of the Closing Date;
(iv) Sections 8.1;
(v) Section 8.2;
(vi) Section 8.3(a); provided, however, that the Sub-Servicer shall
not be permitted to waive any Late Fees or default interest; and, in any
case, if the Sub-Servicer enters into a modification, waiver, amendment,
consent, grant, approval or direction pursuant to this clause (vi), the
Sub-Servicer shall deliver a copy thereof to the Master Servicer promptly
following the execution and delivery of such modification, waiver,
amendment, consent, grant, approval or direction;
(vii) Section 8.3(b); and, in addition, in furtherance of the Master
Servicer's obligations under Section 4.5 of the PSA, the Sub-Servicer shall
use efforts consistent with the Servicing Standard to collect (but shall
have no further obligation to collect), with respect to the Mortgage Loans
that are not Specially Serviced Mortgage Loans, Late Fees and default
interest from the Mortgagor in an amount sufficient to pay Advance Interest
incurred and unpaid with respect to such Mortgage Loan arising on or after
the Cut-Off Date;
(viii) Section 8.3(d);
(ix) Section 8.3(e); provided, however, that (a) references to an
Escrow Account shall be construed to refer to a Sub-Servicer Escrow Account
and (b) references to the Master Servicer Remittance Date shall be
construed to refer to the Sub-Servicer Remittance Date.
(x) Section 8.3(g);
(xi) Section 8.3(h);
(xii) Section 8.3(i);
(xiii) Section 8.3(k);
(xiv) Section 8.5;
(xv) Section 8.6; provided, however, that (i) the Sub-Servicer shall
not make any Advances, (ii) the Sub-Servicer shall obtain the approval of
the Master Servicer (in addition to any other Persons specified in such
Section 8.6) prior to making any decision to force place insurance and
(iii) the Sub-Servicer shall obtain the approval of the Master Servicer (in
addition to any other Persons specified in such Section 8.6) for any
determination to waive any insurance requirements;
(xvi) Section 8.7; provided, however, that the Sub-Servicer shall not
enter into a modification, waiver, amendment, consent, grant, approval or
direction under such Section 8.7 unless the Sub-Servicer has complied with
any applicable provisions of Section 9.39 and Section 12.3 of the PSA and
has engaged in all consultations and obtained all consents and approvals
(whether from the Special Servicer, any Companion Holders, the Operating
Adviser or otherwise) and Rating Agency Confirmations as may be a condition
to entering into such modification, waiver, amendment, consent, grant,
approval or direction under the terms of the PSA and/or the Intercreditor
Agreements; and, in any case, if the Sub-Servicer enters into a
modification, waiver, amendment, consent, grant, approval or direction
pursuant to this clause (xvi), the Sub-Servicer shall deliver a copy
thereof to the Master Servicer promptly following the execution and
delivery of such modification, waiver, amendment, consent, grant, approval
or direction;
(xvii) Section 8.8;
(xviii) Section 8.9;
(xix) Section 8.11(b); provided, however, that references to the
Master Servicer's Certificate Account shall be construed to refer to the
Sub-Servicer Certificate Account and, in addition to the other requirements
set forth in such subsection, the Sub-Servicer shall deliver a copy of the
required information to the Master Servicer (in addition to the Persons to
whom such materials must otherwise be delivered under such subsection)
simultaneously with the delivery thereof to the Persons to whom such
materials must otherwise be delivered under such subsection;
(xx) Section 8.11(c); provided, however, that references to the Master
Servicer's Certificate Account shall be construed to refer to the
Sub-Servicer Certificate Account;
(xxi) Section 8.11(e); provided, however, that such provision shall
apply under this Agreement only insofar as it relates to the activities of
the Sub-Servicer under the preceding clause (xx);
(xxii) Section 8.11(g) and (h); provided, however, that (a) the
Sub-Servicer shall not be required to deliver the Delinquent Loan Status
Report, Historical Loan Modification and Corrected Mortgage Loan Report or
REO Status Report; and (b) each report that is required to be delivered by
the Sub-Servicer shall be so delivered not later than 1:00 p.m. (New York
City time) in each month (1) in connection with the Beacon Seattle & DC
Portfolio Trust Mortgage Loan, to the Master Servicer by no later than 1:00
p.m. (New York City time) on the Sub-Servicer Remittance Date in such
month, (2) in connection with the "serviced companion loan" (as defined in
the PSA) evidenced by the promissory note designated "Note A-5" to the
related Companion Holder by no later than 1:00 p.m. (New York City time) on
the applicable Companion Loan Report Date in such month and (3) in
connection with each other Mortgage Loan that constitutes a "serviced
companion loan" (as defined in the PSA), to the related Companion Holder on
the applicable Companion Loan Report Date in such month. In addition:
(A) On a quarterly basis, or before the 25th calendar day of each
January, April, July and October of each year, commencing in
January 2007, the Sub-Servicer shall deliver to the Master
Servicer the Loan Status Reports in the form attached hereto as
Exhibit C.
(B) The Sub-Servicer shall execute and deliver to the Master Servicer
a certification substantially in the form set forth in Exhibit D
hereto no later than the 25th calendar day of each January,
April, July and October, commencing in July 2007 (the date of
such delivery, in each case, a "Reconciliation Certification
Date"), with respect to the three consecutive calendar months (or
portion thereof following the Closing Date) immediately preceding
the calendar month in which such Reconciliation Certification
Date falls.
(C) On a monthly basis, the Sub-Servicer shall deliver to the Master
Servicer and each Companion Holder a report substantially in the
form of, and containing the information called for in, the
downloadable form of the "Total Loan Report" available as of the
Closing Date on the CMSA Website (or such other form for the
presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally). Such
report shall be delivered each month to (1) in connection with
the Beacon Seattle & DC Portfolio Trust Mortgage Loan, the Master
Servicer by no later than 1:00 p.m. (New York City time) on the
Sub-Servicer Remittance Date in such month, (2) in connection
with the "serviced companion loan" (as defined in the PSA)
evidenced by the promissory note designated "Note A-5", to the
related Companion Holder by no later than 1:00 p.m. (New York
City time) on the applicable Companion Loan Report Date in such
month and (3) in connection with each other Mortgage Loan that
constitutes a "serviced companion loan" (as defined in the PSA),
to the related Companion Holder on the applicable Companion Loan
Report Date in such month.
(D) Not later than the close of business on the first Business Day of
each month, the Sub-Servicer shall prepare and deliver to the
Master Servicer, and to the Companion Holder of the "serviced
companion loan" (as defined in the PSA) evidenced by the
promissory note designated "Note A-5", a Day One Report in the
form of and setting forth the information called for by Exhibit E
with respect to each of the Mortgage Loans.
(xxiii) Section 8.11(h);
(xxiv) Section 8.14; provided, however, that (a) in addition to the
other requirements set forth in such subsection, each CMSA Operating
Statement Analysis Report and each CMSA Financial File relating to a
quarterly period shall be delivered to the Master Servicer within 95 days
after the end of each applicable quarter and (b) the Sub-Servicer shall
prepare the NOI Adjustment Worksheet and the CMSA Operating Statement
Analysis Report relating to annual operating or financial statements and
rent rolls not later than 35 days after receipt of the operating or
financial statements and rent rolls but in no event later than June 1 of
the applicable year; and (c) all operating statements, rent rolls and
financial statements, CMSA Operating Statement Analysis Reports, CMSA
Financial Files and CMSA NOI Adjustment Worksheets shall be delivered by
the Sub-Servicer to the Master Servicer (in addition to the Persons to whom
such materials must otherwise be delivered under such subsection)
simultaneously with the delivery thereof to the Persons to whom such
materials must otherwise be delivered under such subsection;
(xxv) Section 8.15(g); provided, however, that the Sub-Servicer shall
make a Servicing Officer available to answer questions from the Master
Servicer and/or the Operating Adviser;
(xxvi) Section 8.16;
(xxvii) Section 8.17; provided, however, that, in addition to the
other requirements set forth in such subsection, the Sub-Servicer shall
deliver a copy of each inspection report to the Master Servicer (in
addition to the Persons to whom such materials must otherwise be delivered
under such subsection) simultaneously with the delivery thereof to the
Persons to whom such materials must otherwise be delivered under such
subsection;
(xxviii) Section 8.18; provided, however, that the Sub-Servicer shall
not enter into a modification, waiver, amendment, consent, grant, approval
or direction under such Section 8.18 unless the Sub-Servicer has complied
with any applicable provisions of Section 9.39 and Section 12.3 of the PSA
and has engaged in all consultations and obtained all consents and
approvals (whether from the Special Servicer, any Companion Holders, the
Operating Adviser or otherwise) and Rating Agency Confirmations as may be a
condition to entering into such modification, waiver, amendment, consent,
grant, approval or direction under the terms of the PSA and/or the
Intercreditor Agreements; and, in any case, if the Sub-Servicer enters into
a modification, waiver, amendment, consent, grant, approval or direction
pursuant to this clause (xxviii), the Sub-Servicer shall deliver a copy
thereof to the Master Servicer promptly following the execution and
delivery of such modification, waiver, amendment, consent, grant, approval
or direction;
(xxix) Section 8.27; and
(xxx) Article XII (insofar as it affects the activities of the
Sub-Servicer hereunder);
(xxxi) Notwithstanding any contrary provision set forth above in this
subsection (c), the Sub-Servicer shall not be authorized to enter into any
modification, waiver, consent or amendment except pursuant to and in
accordance with clause (vi), clause (xvi) and clause (xxviii) above and
shall not be authorized to enter into a sale of the Beacon Seattle & DC
Portfolio Trust Mortgage Loan on behalf of the Trust Fund. If the
Sub-Servicer receives a request for any modification, waiver, consent or
amendment, other than pursuant to and in accordance with clause (vi),
clause (xvi) and clause (xxviii) above, the Sub-Servicer shall promptly
forward such request and all pertinent information to the Master Servicer.
Also notwithstanding any contrary provision set forth above in this
subsection (c), the Sub-Servicer shall not be permitted or required to make
any Advances.
(d) In addition, the parties further agree as follows:
(i) Advances.
(A) The Primary shall notify the Master Servicer whenever a
Servicing Advance is required to be made with respect to the
Mortgage Loans or the Mortgaged Property. Each such notice
and request shall be made, in writing, not less than five
(5) Business Days (and, to the extent reasonably
practicable, at least ten (10) Business Days), or, in
exigent circumstances not arising from the fault of the
Sub-Servicer, as early as practicable in a shorter period,
in advance of the date on which the subject Servicing
Advance is to be made and shall be accompanied by such
information and documentation regarding the subject
Servicing Advance as the Master Servicer may reasonably
request. In addition, the Sub-Servicer shall not be entitled
to make such a request for Servicing Advances more
frequently than once per calendar month (although such
request may relate to more than one Servicing Advance)
except in exigent or emergency circumstances.
(ii) Sub-Servicer Certificate Account.
(A) On or before the Closing Date, the Sub-Servicer shall
establish the Sub-Servicer Certificate Account, which shall
be an Eligible Account, notify the Master Servicer in
writing of the name and address of the depository
institution at which the Sub-Servicer Certificate Account is
maintained and the account number of the Sub-Servicer
Certificate Account. The Sub-Servicer shall deliver to the
Master Servicer prior written notice of any change in the
location, name or address of the applicable depository
institution or account number of the Sub-Servicer
Certificate Account. The Sub-Servicer shall deposit all
payments and collections received by the Sub-Servicer into
the Sub-Servicer Certificate Account within two Business
Days following receipt.
(B) On or before the Closing Date, the Sub-Servicer shall
establish and maintain a sub-account of the Sub-Servicer
Certificate Account (such sub-account, a "Sub-Servicer
Serviced Companion Loan Custodial Account") with respect to
each Companion Loan to be held for the benefit of the
related Companion Holder. If a promissory note evidencing a
Companion Loan is reallocated or divided into multiple
promissory notes pursuant to the terms of an Intercreditor
Agreement, then the Sub-Servicer shall, upon receipt of a
copy of the related documents pursuant to such Intercreditor
Agreement, terminate the Sub-Servicer Serviced Companion
Loan Custodial Account existing for such Companion Loan
prior to the reallocation or division and establish a
Sub-Servicer Serviced Companion Loan Custodial Account for
the related Companion Holder of each the replacement
promissory notes.
(C) The Sub-Servicer shall from time to time allocate payments
and collections received on or in respect of the Mortgage
Loans in accordance with the PSA and the Intercreditor
Agreements. For the avoidance of doubt, if the Sub-Servicer
has notice or knowledge of fees, expenses, reimbursements or
other amounts that have been incurred or that have accrued
on or in respect of the Mortgage Loans, then the
Sub-Servicer shall take account of such amounts in making
allocations pursuant to the Intercreditor Agreements. The
Master Servicer shall be entitled to provide instructions to
the Sub-Servicer with respect to allocations under the
Intercreditor Agreements, in which case the Sub-Servicer
shall comply with such instructions.
(D) The Sub-Servicer shall not withdraw funds from the
Sub-Servicer Certificate Account (including the sub-accounts
thereof that constitute the Sub-Servicer Serviced Companion
Loan Custodial Accounts), except as follows: (1) to make
remittances required under subsection (E) below; (2) if the
Master Servicer so directs, to pay to or at the direction of
the Master Servicer any fees, expenses or reimbursements
payable to one or more parties to the PSA, which fees,
expenses or reimbursements have become due and payable under
the terms of the PSA and are payable from collections
received on or in respect of the Mortgage Loans; (3) the
Sub-Servicer shall be entitled to withdraw and pay to itself
any investment or other income earned on amounts on deposit
in the Sub-Servicer Certificate Account (including the
sub-accounts thereof that constitute the Sub-Servicer
Serviced Companion Loan Custodial Accounts) to which it is
entitled; (4) the Sub-Servicer shall withdraw and pay to
itself each other item of compensation to which it is
entitled (but only from the amounts from which such
compensation is payable as otherwise provided herein) and
(5) the Sub-Servicer shall be entitled to withdraw from the
Sub-Servicer Certificate Account at any time any amounts on
deposit therein that were not required to be deposited into
the Sub-Servicer Certificate Account. The Sub-Servicer shall
keep and maintain separate accounting for the purpose of
justifying any withdrawals or transfers made from the
Sub-Servicer Certificate Account (and/or the Sub-Servicer
Serviced Companion Loan Custodial Accounts).
(E) Not later than 1:00 p.m. (New York City time) on the
Sub-Servicer Remittance Date in each month, the Sub-Servicer
shall withdraw from the Sub-Servicer Certificate Account
(including the sub-accounts thereof that constitute the
Sub-Servicer Serviced Companion Loan Custodial Accounts) and
remit to the Master Servicer all amounts on deposit in the
Sub-Servicer Certificate Account (including the sub-accounts
thereof that constitute the Sub-Servicer Serviced Companion
Loan Custodial Accounts) as of the close of business on the
Determination Date, net of (1) all withdrawals that the
Sub-Servicer is then required or entitled to make from the
Sub-Servicer Certificate Account pursuant to subsection (D)
and (2) the amounts to which the --------------- Companion
Holders are then properly entitled under the Intercreditor
Agreements; provided, -------- however, that,
notwithstanding the preceding ------- clause (2), the
Sub-Servicer shall nonetheless remit to the Master Servicer
any Master Servicing Fees (if any) that are due and payable
(in accordance with the PSA) in respect of the Companion
Loans. Not later than 1:00 p.m. (New York City time) on the
Companion Loan Remittance Date in each month, the
Sub-Servicer shall withdraw from the Sub-Servicer
Certificate Account (including the portions thereof that
constitute the Sub-Servicer Serviced Companion Loan
Custodial Accounts) and remit to the related Companion
Holder the portion of all amounts on deposit in the
Sub-Servicer Certificate Account (including the portions
thereof that constitute the Sub-Servicer Serviced Companion
Loan Custodial Accounts) to which such Companion Holder is
then properly entitled under the Intercreditor Agreements
(net of any Master Servicing Fees (if any) and Sub-Servicing
Fees that are due and payable in respect of such Companion
Loan). Notwithstanding the foregoing, the parties
acknowledge that the PSA does not entitle the Master
Servicer to Master Servicing Fees on any Companion Loan. The
Sub-Servicer shall remit to the Master Servicer any late
payments received on and properly allocable to the Beacon
Seattle & DC Portfolio Trust Mortgage Loan within one
Business Day following the Sub-Servicer's receipt thereof.
The Sub-Servicer shall remit to each Companion Holder any
late payments received on and properly allocable to the
related Companion Loan within one Business Day following the
Sub-Servicer's receipt thereof. All remittances hereunder
shall be made by wire transfer of immediately available
funds.
(F) Not later than the time of each remittance of funds to the
Master Servicer or any Companion Holder pursuant to
subsection (E), the Sub-Servicer shall deliver (by
electronic means) to the Master Servicer or such Companion
Holder, as the case may be, a remittance report
substantially in the form attached hereto as Exhibit B,
unless (in the case of a Companion Holder) such Companion
Holder waives the delivery thereof and a copy of such waiver
is delivered to the Master Servicer.
(iii) Prepayment Interest Shortfalls.
(A) If a Prepayment Interest Shortfall occurs in connection with
the Beacon Seattle & DC Portfolio Trust Mortgage Loan with
respect to any Distribution Date (unless incurred while the
Beacon Seattle & DC Portfolio Trust Mortgage Loan is a
Specially Serviced Mortgage Loan or Defaulted Mortgage
Loan), then the Sub-Servicer shall pay to the Master
Servicer (out of the Sub-Servicer's own funds without right
of reimbursement therefor) a compensating interest payment
in the amount of such Prepayment Interest Shortfall;
provided, however, that the Sub-Servicer shall ------- not
be required to pay such compensating interest payment in an
amount in excess of the product of (1) the aggregate
"compensating interest payment" that is required to be made
for the applicable Distribution Date by the Master Servicer
in connection with all mortgage loans serviced by the Master
Servicer under the PSA and (2) the ratio of (a) the
Prepayment Interest Shortfall occurring in connection with
the Beacon Seattle & DC Portfolio Trust Mortgage Loan for
such Distribution Date that is taken account of in the
calculation of such compensating interest payment that is
required to be made by the Master Servicer in connection
with all mortgage loans serviced by the Master Servicer
under the PSA to (b) the aggregate of the Prepayment
Interest Shortfalls for such Distribution Date for all
mortgage loans serviced by the Master Servicer under the PSA
that are taken account of in the calculation of such
compensation interest payment. Any payment required to be
made by the Sub-Servicer as described above shall be
remitted to the Master Servicer on the Sub-Servicer
Remittance Date immediately preceding the related
Distribution Date for which the applicable Prepayment
Interest Shortfall arose. If any amounts similar to
Prepayment Interest Shortfalls are required to be paid by a
primary servicer of the Companion Loans to any Companion
Holder under the terms of an Intercreditor Agreement, then
the Sub-Servicer shall pay such amount to such Companion
Holder as and when due under the terms of such Intercreditor
Agreement. If the aggregate amount of all Prepayment
Interest Excesses for any Distribution Date occurring in
connection with all mortgage loans serviced by the Master
Servicer under the PSA exceeds the aggregate amount of all
Prepayment Interest Shortfalls for such Distribution Date
occurring in connection with all mortgage loans serviced by
the Master Servicer under the PSA, the Sub-Servicer shall be
entitled to retain the product of (1) any Prepayment
Interest Excess for such Distribution Date occurring in
connection with the Beacon Seattle & DC Portfolio Trust
Mortgage Loan and (2) the ratio of (a) such Prepayment
Interest Excess for such Distribution Date occurring in
connection with the Beacon Seattle & DC Portfolio Trust
Mortgage Loan to (b) the aggregate amount of all Prepayment
Interest Excesses for such Distribution Date occurring in
connection with all mortgage loans serviced by the Master
Servicer under the PSA.
(iv) Sub-Subservicers.
(A) The Sub-Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage
Loans by any Sub-Subservicer appointed by it. The terms of
any arrangement or agreement between the Sub-Servicer and a
Sub-Subservicer shall provide that such agreement or
arrangement may be terminated, without cause and without the
payment of any termination fees, by the Master Servicer or
the Trustee in the event the Sub-Servicer is terminated in
accordance with this Agreement. In addition, none of the
Master Servicer, the Trustee, the Special Servicer, the
Paying Agent, the Certificateholders or any Companion Holder
shall have any direct obligation or liability (including,
without limitation, indemnification obligations) with
respect to any Sub-Subservicer. The Sub-Servicer shall pay
the costs of enforcement against any of its Sub-Subservicers
at its own expense, but shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement
only to the extent that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a
specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed.
Notwithstanding the provisions of any primary servicing
agreement or sub-servicing agreement, any of the provisions
of this Agreement relating to agreements or arrangements
between the Sub-Servicer or a Sub-Subservicer, or reference
to actions taken through a Sub-Subservicer or otherwise, the
Sub-Servicer shall remain obligated and liable to the Master
Servicer, the Trustee, the Paying Agent, the Special
Servicer, any Companion Holder and the Certificateholders
for the servicing and administering of the applicable
Mortgage Loans in accordance with (and subject to the
limitations contained within) the provisions of this
Agreement without diminution of such obligation or liability
by virtue of indemnification from a Sub-Subservicer and to
the same extent and under the same terms and conditions as
if the Sub-servicer alone were servicing and administering
the Mortgage Loans. The Sub-Servicer shall notify the Master
Servicer in writing promptly of the appointment by it of any
Sub-Subservicer.
(B) Subject to the limitations of subsection (A), the
Sub-Servicer may appoint one or more Sub-Subservicers to
perform all or any portion of its duties hereunder for the
benefit of the Master Servicer, the Trustee, the
Certificateholders and the Companion Holders; provided,
however, that (1) any decision or recommendation involving
the exercise of the Sub-Servicer's discretion as a "lender"
under any loan document with respect to the Mortgage Loans
shall be exercised only by the Sub-Servicer and may not be
delegated to a Sub-Subservicer; and (2) the Sub-Servicer
shall not enter into a sub-servicing agreement with any
party that is a Prohibited Party.
(C) Notwithstanding anything herein to the contrary, any
sub-servicing agreement with a Sub-Subservicer shall provide
that (i) the failure of the related Sub-Subservicer to
comply with any of the requirements of Article XIII of the
PSA, (ii) the failure of the related Sub-Subservicer to
comply with any requirements to deliver any items required
by Items 1122 and 1123 of Regulation AB under any other
pooling and servicing agreement relating to any commercial
mortgage loan securitization similar to the Subject
Securitization Transaction or (iii) any Sub-Subservicer who
is deemed to be a Prohibited Party at any time during which
the Trust or any Other Securitization Trust is subject to
the reporting requirements of the Exchange Act shall
constitute an event of default by such Sub-Subservicer upon
the occurrence of which the Sub-Servicer shall, and the
Master Servicer, the Special Servicer, the Depositor and/or
any Other Securitization Depositor may, immediately
terminate the related Sub-Subservicer and that such
termination shall be deemed for cause.
(D) Without limiting the generality of the foregoing clauses (A)
through (C), the Sub-Servicer shall be permitted to employ,
at its own expense, subcontractors to perform selected
services (such as the engagement of tax monitoring services,
property inspections, etc.) in connection with
Sub-Servicer's performance of its duties with respect to the
Mortgage Loans; provided, however, that: (1) the authority
of the Sub-Servicer to employ such subcontractors shall not
exceed the authority of the Master Servicer to do so under
the PSA and any such employment shall be subject to the same
terms and conditions as would be imposed on the Master
Servicer under the PSA in connection with the Master
Servicer's employment of such subcontractors; (2) the
Sub-Servicer shall remain fully liable at all times for the
timely performance of all of its duties and obligations
hereunder; (3) the terms of such an arrangement shall not be
binding upon the Master Servicer or any successor primary
servicer or subservicer of the Mortgage Loans; (4) no such
arrangement shall obligate the Master Servicer to
communicate or deal with any Person under this Agreement
other than the Sub-Servicer; (5) no such arrangement shall
result in the delegation by the Sub-Servicer of its duty to
make any recommendation for the granting or withholding of
any consent or waiver or the making of any other decision on
the part of the holder of any Mortgage Loan; (6) such
arrangements taken together shall not result in the
delegation by the Sub-Servicer of substantially all of its
duties hereunder to any one Person or group of Affiliated
Persons; and (7) the Sub-Servicer shall maintain and perform
policies and procedures to monitor such subcontractors'
performance of the services for which they are employed.
(v) Reserve Collateral.
(A) If and to the extent that (a) a mezzanine lender, pursuant
to a mezzanine intercreditor agreement, or a Companion
Holder, pursuant to the Intercreditor Agreements, is
entitled to post cash, letter of credit or other reserve
collateral as a condition to retaining consent or approval
rights that would otherwise terminate or be abated or
suspended, (b) such lender or holder so posts any such cash,
letter of credit or other reserve collateral and (c) the PSA
and Intercreditor Agreements otherwise grants to the Master
Servicer the right to hold such cash, letter of credit or
other reserve collateral, then, as between the Master
Servicer, on the one hand, and the Sub-Servicer, on the
other, the Sub-Servicer shall hold such cash, letter of
credit or other reserve collateral but the Sub-Servicer
shall not draw upon or liquidate such cash, letter of credit
or other reserve collateral unless the Sub-Servicer has
obtained the consent of the Master Servicer and any other
parties whose consent is required as a condition to such
draw or liquidation.
SECTION 3.02. Sub-Servicer Compensation.
As consideration for the Sub-Servicer's performance hereunder, the
Sub-Servicer shall be entitled to deduct (and retain from the remittance
otherwise required to be made to the Master Servicer and the Companion Holders)
the related Sub-Servicing Fees with respect to the related Collection Period.
The Sub-Servicer's rights to the Sub-Servicing Fees may not be transferred in
whole or in part except in connection with the transfer of all of the
Sub-Servicer's responsibilities and obligations under this Agreement.
As further consideration for the Sub-Servicer's performance
hereunder, the Sub-Servicer shall be entitled to net income and gain realized
from any investment of funds on deposit in the Sub-Servicer Certificate Account,
to the extent provided in Section 3.01(c)(iii), and any net interest or other
income earned on deposits in the Sub-Servicer Escrow Accounts, to the extent
provided in Section 3.01(c)(iii) and not required to be paid to any Mortgagor
under applicable law.
As additional consideration for the Sub-Servicer's performance
hereunder, the Sub-Servicer shall be entitled to retain, and (subject to any
contrary provisions of the PSA or any Intercreditor Agreement) shall not be
required to deposit into the Sub-Servicer Certificate Account pursuant to
Section 3.01(d)(ii)(A), additional servicing compensation in the form of:
(i) the product of (a) Modification Fees, assumption application fees,
assumption fees and forbearance fees relating to the Mortgage Loans, to the
extent that the Master Servicer is otherwise entitled thereto under the
Intercreditor Agreements and Section 5.2(a)(i) of the PSA and (b) either
100% (if the Sub-Servicer is authorized hereunder to enter into the
transaction without the consent or deemed consent of the Master Servicer)
or 50% (if the Sub-Servicer is authorized hereunder to enter into the
transaction only with the consent or deemed consent of the Master
Servicer);
(ii) 100% of defeasance fees relating to the Mortgage Loans, to the
extent that the Master Servicer is otherwise entitled thereto under the
Intercreditor Agreements and the PSA; and
(iii) other usual and customary charges and fees actually received
from Mortgagors, to the extent that the Master Servicer is otherwise
entitled thereto under Section 8.10(b) of the Pooling and Servicing
Agreement;
provided, however, that, in each case, (1) any fee shall be considered in the
above clauses only to the extent that such fee is paid by the Mortgagor and only
to the extent that all amounts then due and payable with respect to the related
Mortgage Loan have been paid, (2) in no event shall the Sub-Servicer be entitled
to Prepayment Premiums, Yield Maintenance Charges or Excess Interest and (3) the
Sub-Servicer shall be entitled to Late Fees and default interest only to the
extent provided in the next succeeding paragraph.
As additional consideration for the Sub-Servicer's performance
hereunder, the Sub-Servicer shall be entitled to 50% of any Late Fees relating
to the Mortgage Loans that the Master Servicer is otherwise entitled to retain
for its own account under the PSA and the Intercreditor Agreements and 50% of
any default interest relating to the Mortgage Loans that the Master Servicer is
otherwise entitled to retain for its own account under the PSA and the
Intercreditor Agreements.
ARTICLE IV
ANNUAL COMPLIANCE DOCUMENTS; REGULATION AB
SECTION 4.01. Regulation AB Compliance and Related Provisions of the
PSA.
The Sub-Servicer acknowledges that it is initially an "Additional
Servicer", a "Sub-Servicer", a "Servicing Function Participant" and a "Reporting
Servicer" within the meaning of the PSA and that, for purposes of this
Agreement, the Sub-Servicer shall be deemed to continue to constitute such an
"Additional Servicer", a "Sub-Servicer", a "Servicing Function Participant" and
a "Reporting Servicer" unless and until the Master Servicer reasonably
determines otherwise. The Sub-Servicer agrees to perform any and all duties and
obligations that Article XIII of the PSA states must be performed by an
"Additional Servicer", a "Sub-Servicer", a "Servicing Function Participant"
and/or a "Reporting Servicer" and any and all duties and obligations that the
Master Servicer is required to use reasonable efforts to cause an "Additional
Servicer", a "Sub-Servicer", a "Servicing Function Participant" and/or a
"Reporting Servicer" to perform under Article XIII of the PSA. In addition, by
its execution hereof, the Sub-Servicer agrees to such duties and obligations
also for the benefit of the Master Servicer as if such duties and obligations
inured directly to the benefit of the Master Servicer (in addition to any other
party to whom the benefit of any such duty or obligation may otherwise inure
under Article XIII of the PSA). For the avoidance of doubt, if the Sub-Servicer
engages any "Subcontractor" within the meaning of the PSA, then the Sub-Servicer
shall cause such "Subcontractor" to perform any and all obligations that a
"Servicer" is required to cause such a "Subcontractor" to perform under the
Article XIII of the PSA. In any case, however, any annual compliance
certificate, any annual report of assessment of compliance with servicing
criteria and any accountants' attestation report shall be delivered not later
than March 15th (with no grace period) of each applicable year.
SECTION 4.02. Additional Requirements.
In addition to the duties and obligations contemplated by Section
4.01, the Sub-Servicer agrees as follows:
(a) Accounting Firm Attestation. The firm that renders the
attestation report for the Sub-Servicer pursuant to Item 1122 of Regulation AB,
as contemplated under Section 13.11 of the PSA, shall be a firm that is
registered with the Public Company Accounting Oversight Board and either shall
be a "big four" accounting firm or shall be subject to the reasonable approval
of the Master Servicer.
(b) Copies of Reports and Information. The Sub-Servicer shall
deliver or caused to be delivered to the Master Servicer a copy of each notice,
report, certification or other document delivered by or on behalf of the
Sub-Servicer to any Person other than the Master Servicer under Article XIII of
the PSA, in each case simultaneously with the delivery thereof to such other
Person.
(c) Disclosure of Agreement and Reports. The Sub-Servicer hereby
consents to the filing with the SEC, and the unrestricted disclosure to the
public, of this Agreement, any amendment to this Agreement and any and all
reports and certifications delivered under this Agreement.
(d) Merger and Assignment. Notwithstanding any provision of this
Agreement to the contrary, and in addition to the provisions set forth in
Section 5.01, as long as (but only for so long as) the Trust or any Other
Securitization Trust is subject to the reporting requirements of the Exchange
Act, the Sub-Servicer may not remain the Sub-Servicer under this Agreement after
(x) being merged or consolidated with or into any Person that is a Prohibited
Party, or (y) transferring all or substantially all of its assets to any Person
if such Person is a Prohibited Party, unless the Depositor and each Other
Securitization Depositor consents to such merger, consolidation or transfer,
such consent not be unreasonably withheld (and if, within 45 days following the
date of delivery of a notice by the Sub-Servicer to the Depositor or such Other
Securitization Depositor of any merger or similar transaction, such Depositor or
such Other Securitization Depositor shall have failed to notify the Sub-Servicer
of the Depositor's or such Other Securitization Depositor's determination to
grant or withhold such consent, such failure shall be deemed to constitute a
grant of such consent by such Depositor or such Other Securitization Depositor,
as the case may be).
SECTION 4.03. Indemnification.
The Sub-Servicer shall indemnify and hold harmless the Master
Servicer and each Certification Indemnitee from and against any claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and expenses and
related costs, judgments and other costs and expenses incurred by the Master
Servicer or such Certification Indemnitee arising out of (i) an actual breach by
the Sub-Servicer of its obligations under this Article IV, or (ii) any failure
of any "Additional Servicer", "Servicing Function Participant" or "Reporting
Servicer" (as defined in the PSA) retained by the Sub-Servicer to perform the
obligations imposed or contemplated to be imposed on such servicer under Article
XIII of the PSA by the times required therein.
The Sub-Servicer shall cause each "Additional Servicer", "Servicing
Function Participant" and "Reporting Servicer" (as defined in the PSA) with
which it has entered into or may hereafter enter into a servicing relationship
with respect to the Mortgage Loans to indemnify and hold harmless the Master
Servicer and each Certification Indemnitee from and against any and all claims,
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments and any other costs, fees and expenses incurred by the
Master Servicer or such Certification Indemnitee arising out of a breach of its
obligations to the Master Servicer, the Paying Agent, the Depositor or the
Trustee to provide any of the annual compliance statements or annual assessment
of compliance reports or attestation reports pursuant to the applicable
sub-servicing agreement.
If the indemnification provided for under this Section 4.03 is
unavailable or insufficient to hold harmless the Master Servicer or any
Certification Indemnitee, then the Sub-Servicer shall (or the Sub-Servicer shall
cause the applicable "Additional Servicer", "Servicing Function Participant" and
"Reporting Servicer" (as defined in the PSA) with which it has entered into a
servicing relationship to) contribute to the amount paid or payable to the
Master Servicer or such Certification Indemnitee as a result of the losses,
claims, damages or liabilities of the Master Servicer or such Certification
Indemnitee in such proportion as is appropriate to reflect the relative fault of
the Master Servicer or such Certification Indemnitee on the one hand and the
Sub-Servicer (or such "Additional Servicer", "Servicing Function Participant"
and "Reporting Servicer") on the other in connection with a breach of the
obligations of the Sub-Servicer (or such "Additional Servicer", "Servicing
Function Participant" and "Reporting Servicer") pursuant to this Article IV or
Article XIII of the PSA (or breach of its obligations under the applicable
sub-servicing agreement to provide any of the annual compliance statements or
annual servicing criteria compliance reports or attestation reports). This
Section 4.03 shall survive the termination of this Agreement or the earlier
resignation or removal of the Sub-Servicer.
ARTICLE V
REGARDING THE MASTER SERVICER AND SUB-SERVICER
SECTION 5.01. Merger or Consolidation of the Sub-Servicer.
Subject to the following paragraph, the Sub-Servicer will keep in
full effect its existence, rights and good standing as a corporation, bank,
trust company, partnership, limited liability company, association or other
legal entity under the laws of the jurisdiction wherein it was organized and
will preserve its ability to do business in each jurisdiction in which the
Mortgaged Properties are located to the extent necessary to protect the validity
and enforceability of this Agreement, the Certificates or any of the Mortgage
Loans or to perform its duties under this Agreement.
The Sub-Servicer may be merged or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which it
shall be a party, or any Person succeeding to its business, shall be the
successor of the Sub-Servicer, and shall be deemed to have assumed all of the
liabilities of the Sub-Servicer hereunder, in each case without the execution or
filing of any paper; provided, however, that no successor or surviving Person
shall succeed to the rights of the Sub-Servicer unless the Sub-Servicer has
delivered or cause to have been delivered to the Master Servicer a Rating Agency
Confirmation to the effect that such merger or consolidation or transfer of
assets and succession will not result in a qualification, downgrade or
withdrawal of any rating assigned by a Rating Agency to any Class of
Certificates. The provisions set forth above in this paragraph shall be subject
to the additional conditions set forth in Section 4.02(d) hereof.
SECTION 5.02. Assignment; Mutual Termination; and Resignation.
(a) This Agreement and the rights and benefits hereunder of the
Sub-Servicer shall not be assignable, and the duties and obligations hereunder
of such party shall not be delegable; provided, however, that (i) the
Sub-Servicer shall be entitled to employ sub-subservicers and/or subcontractors
to the extent provided in Section 3.01(d)(iv) and (ii) the Sub-Servicer shall be
entitled to assign, sell or transfer its rights and duties under this Agreement
(in whole and not in part) with the reasonable approval of the Master Servicer,
provided that (in the case of this subclause (ii)) the proposed successor to the
Sub-Servicer then (a) is rated "above average" or the equivalent by each Rating
Agency, (b) has at least $15,000,000 in total assets, (c) is an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans and (d) is the subject of a Rating Agency
Confirmation and a confirmation from each rating agency that has rated any
Companion Loan Securities to the effect that the succession will not result in a
downgrade, qualification or withdrawal of any rating of any class of
Certificates or any class of Companion Loan Securities, as the case may be. Any
such assignment under clause (ii) above shall (A) not be effective until such
successor Sub-Servicer enters into a written agreement reasonably satisfactory
to the Master Servicer agreeing to be bound by the terms and provisions of this
Agreement (but not altering the obligations under this Agreement); and (B) not
relieve the assigning Sub-Servicer of any duties or liabilities arising or
incurred prior to such assignment. Any costs or expenses incurred in connection
with such assignment shall be payable by the assigning Sub-Servicer. Any
assignment or delegation or attempted assignment or delegation in contravention
of this Agreement shall be null and void.
(b) This Agreement shall terminate on the date set forth as the date
of termination in an instrument executed by both the Sub-Servicer and the Master
Servicer and evidencing their mutual consent that this Agreement be terminated.
(d) Except as provided in Section 5.02(b) and Section 5.02(b), the
Sub-Servicer shall not resign from its obligations and duties hereby imposed on
them except upon determination that such duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Sub-Servicer shall be evidenced by an Opinion of Counsel
(obtained at the expense of the resigning Sub-Servicer) to such effect delivered
to the Master Servicer, the Trustee and the Companion Holders, together with a
notice of resignation from the Sub-Servicer. No such resignation shall become
effective until a successor Master Servicer designated by the Master Servicer
shall have assumed the Sub-Servicer's responsibilities and obligations under
this Agreement.
SECTION 5.03. Termination and Resignation of the Master Servicer
under the PSA.
(a) If the Master Servicer's responsibilities and duties as Master
Servicer under the PSA have been assumed by the Trustee, the Trustee shall,
without act or deed on the part of the Trustee, succeed to all of the rights and
obligations of the Master Servicer under this Agreement (unless a successor
master servicer other than the Trustee is designated and appointed pursuant to
the PSA, in which case such successor master servicer shall so succeed upon its
designation and appointment), and the Sub-Servicer shall be bound to the Trustee
(or, if applicable, such successor master servicer) under all of the terms,
covenants and conditions of this Agreement with the same force and effect as if
the Trustee (or, if applicable, such successor master servicer) was originally
the Master Servicer under this Agreement; and the Sub-Servicer does hereby
attorn to the Trustee (or, if applicable, such successor master servicer), as
the successor Master Servicer hereunder, said attornment to be effective and
self-operative without the execution of any further instruments on the part of
any of the parties hereto immediately upon the Trustee (or, if applicable, such
successor master servicer) succeeding to the interest of the Master Servicer
hereunder. The Sub-Servicer agrees, however, upon written demand by the Trustee
(or, if applicable, such successor master servicer) to promptly execute and
deliver to the Trustee an instrument in confirmation of the foregoing
provisions, in form and substance reasonably satisfactory to the Trustee (or, if
applicable, such successor master servicer).
(b) If the Master Servicer is terminated under Article VIII of the
PSA and no Event of Default then exists under this Agreement, the Trustee (or a
successor Master Servicer appointed by it) under the PSA shall assume the
terminated Master Servicer's obligations and responsibilities under this
Agreement.
(c) If any Person into which the Master Servicer is merged or
consolidated, or any Person resulting from any merger, conversion, other change
in form or consolidation to which the Master Servicer is a party, or any Person
succeeding to the business of such Master Servicer, becomes the successor of the
Master Servicer under the PSA, then such Person shall also be the successor of
the Master Servicer hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. If any Person to whom
the Master Servicer has assigned its rights and obligations under the PSA
becomes the successor of the Master Servicer under the PSA, then such Person
shall also be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
(d) The Master Servicer shall not resign from the duties and
obligations imposed hereunder, except in connection with a resignation of its
duties under the PSA that is effected pursuant to and in accordance with the
Section 8.22 of the PSA. In the case of any such resignation, the resigning
Master Servicer shall cause the proposed successor Master Servicer to agree, in
writing, to be bound by all of the duties and obligations of the Master Servicer
under the terms of this Agreement, without modification, except for
modifications which do not adversely affect the rights of the Sub-Servicer
hereunder.
SECTION 5.04. Indemnification; Limitation on Liability.
(a) 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 partners, 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) incurred (i) by reason of willful misfeasance, bad faith or negligence
in the performance of servicing duties hereunder or reckless disregard of
servicing obligations or duties hereunder by such party, (ii) resulting from
such party's failure to comply with its other obligations under this Agreement
or (iii) resulting from such party's breach of its representations and
warranties made in this Agreement. 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 5.04 shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer or the
Sub-Servicer.
(b) Neither the Master Servicer nor the Sub-Servicer nor any of
their respective directors, officers, employees or agents shall be under any
liability to the other, the holders of the Certificates, the Companion Holders,
the Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith, or using reasonable
business judgment, consistent with the Servicing Standard; provided that this
provision shall not protect such party or any such person against any liability
which would otherwise be imposed by reason of against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties under the Agreement or by reason of negligent
disregard of obligations and duties hereunder; and provided, further, that the
Sub-Servicer shall not be protected by this statement to any greater extent than
the Master Servicer is protected under Section 8.24(a) of the PSA. Each of the
Master Servicer and the Sub-Servicer and their respective directors, officers,
employees and agents 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.
ARTICLE VI
DEFAULT
SECTION 6.01. Events of Default.
(a) "Event of Default," wherever used in this Agreement with respect
to the Sub-Servicer, means any of the following events:
(i) any failure by the Sub-Servicer to make any deposit required to be
made by the Sub-Servicer to the Sub-Servicer Certificate Account on the day
and by the time such deposit is required to be made under the terms of this
Agreement or any failure by the Sub-Servicer to remit to the Master
Servicer or a Companion Holder when due any amount required to be remitted
under this Agreement, which failure (in each case) is not remedied within
one (1) Business Day; or
(ii) any failure by the Sub-Servicer duly to observe or perform in any
material respect any of the covenants or agreements on the part of the
Sub-Servicer contained in this Agreement, which failure continues
unremedied for a period of twenty-five (25) days 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; provided,
however, that, if both the Sub-Servicer certifies to the Master Servicer
that the Sub-Servicer is in good faith attempting to remedy such failure
and the Certificateholders and Companion Holders shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Sub-Servicer to cure such failure; provided,
further, that such cure period may not exceed eighty (80) days; and
provided, further, that no such cure period shall apply if such failure to
perform on the part of the Sub-Servicer would result in an Event of Default
by the Master Servicer under the PSA;
(iii) any breach of the representations and warranties made pursuant
to Section 2.03 hereof that materially and adversely affects the interest
of the Master Servicer and that continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Master Servicer to Sub-Servicer; provided, however, that , if both the
Sub-Servicer certifies to the Master Servicer that the Sub-Servicer is in
good faith attempting to remedy such breach and the Certificateholders and
Companion Holders shall not be materially and adversely affected thereby,
such cure period may be extended to the extent necessary to permit the
Sub-Servicer to cure such failure; provided, further, that such cure period
may not exceed eighty (80) days; and provided, further, that if such
failure to perform on the part of the Sub-Servicer results in an Event of
Default (or an event that with notice or the passage of time would
constitute such an Event of Default) by the Master Servicer under the PSA,
then the cure periods described in this Section clause (iii) shall not
apply; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Sub-Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(v) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
(vi) 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
(vii) Xxxxx'x has (a) qualified, downgraded or withdrawn its rating or
ratings of one or more classes of Certificates or any Companion Loan
Securities issued (and such qualification, downgrade or withdrawal shall
not have been reversed by Xxxxx'x within 60 days of the date thereof), or
(b) placed one or more classes of Certificates or any Companion Loan
Securities on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn
by Xxxxx'x within 60 days of the date thereof), and, in the case of either
of clauses (a) or (b), citing servicing concerns with the Sub-Servicer as
the sole or material factor in such rating action; or
(viii) the Sub-Servicer has been removed from S&P's Select Servicer
List as a U.S. Commercial Mortgage Primary Servicer, and the Sub-Servicer
is not reinstated to such status within sixty (60) days; or
(ix) if any class of Companion Loan Securities is rated by Fitch, a
servicing officer of the Sub-Servicer obtains actual knowledge that Fitch
has (a) qualified, downgraded or withdrawn its rating or ratings of any
such securities, or (b) has placed any such securities on "watch status" in
contemplation of a ratings downgrade or withdrawal (and such qualification,
downgrade, withdrawal or "watch status" placement shall not have been
withdrawn by Fitch within 60 days of the date such servicing officer
obtained such actual knowledge) and, in the case of either of clauses (a)
or (b), cited servicing concerns with the Sub-Servicer as the sole or
material factor in such rating action; or
(x) any other event caused by the Sub-Servicer which creates an Event
of Default of the Master Servicer under the PSA; or
(xi) the Sub-Servicer fails to comply with any of the applicable
requirements of Article XIII of the PSA, or, for so long as the Master
Servicer is required to provide Exchange Act reporting items under the
terms of the PSA, the Sub-Servicer fails to comply with any requirements to
deliver any items required by Items 1122 and 1123 of Regulation AB (while
such reporting is required under Regulation AB) under any other pooling and
servicing agreement relating to any transaction similar to the Subject
Securitization Transaction;
(xii) the Sub-Servicer is deemed to be a "Prohibited Party" (as
defined in the PSA) at any time during which the Trust or an Other
Securitization Trust is subject to the reporting requirements of the
Exchange Act.
The Sub-Servicer agrees to give prompt written notice to the Master
Servicer and the Companion Holders upon the occurrence of any Event of Default.
If the Sub-Servicer fails to remit to the Master Servicer when due
any amount required to be remitted under this Agreement (whether or not such
failure constitutes an Event of Default and in addition to any other remedy that
the Master Servicer may otherwise have), then interest shall accrue on the
amount that was required to be remitted, and the Sub-Servicer shall promptly pay
such interest to the Master Servicer, at a per annum rate equal to the Advance
Rate from and including the date when such remittance was required to be made to
but excluding the day when such remittance is actually made.
(b) If any Event of Default shall occur and be continuing, then, and
in each and every such case, so long as such Event of Default shall not have
been remedied, the Master Servicer may terminate, by notice in writing to the
Sub-Servicer, all of the rights and obligations of the Sub-Servicer as
Sub-Servicer under this Agreement. 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, and, without limitation, the Master Servicer, after such termination of
the Sub-Servicer's rights hereunder, 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. From and after any such termination, the Sub-Servicer shall comply
with Section 7.02. The rights of the Master Servicer to terminate the
Sub-Servicer upon the occurrence of an Event of Default as set forth above shall
be in addition to any other rights the Master Servicer may have at law or in
equity.
(c) Notwithstanding any contrary provision of subsection (a) or
subsection (b), if the Sub-Servicer receives a written notice of termination
relating solely to an Event of Default set forth in clause (vii), (viii) or (ix)
of Section 6.01(a), then the Sub-Servicer shall have an additional forty-five
(45) days from the delivery of such notice to assign this Agreement in
accordance with the provisions of Section 5.02(a).
SECTION 6.02. Other Remedies
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, each of the Trustee and the
Master Servicer, in addition to the rights specified in Section 6.01, shall have
the right to take all actions now or hereafter existing at law, in equity or by
statute to enforce its own rights and remedies and/or to protect the interests,
and enforce the rights and remedies, of the Certificateholders and Companion
Holders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filing of proofs of claim and debt
in connection therewith). In such event, the Master Servicer shall be entitled
to be reimbursed by the Sub-Servicer for the legal fees, expenses and costs of
such action and any liability resulting therefrom. 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.
SECTION 6.03. 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.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination.
Except as otherwise specifically set forth herein, the obligations
and responsibilities of the Sub-Servicer shall terminate: (i) upon the later of
the final payment or other liquidation of all (and not less than all) the
Mortgage Loans, or upon a Final Recovery Determination (or the equivalent) of
all (and not less than all) the Mortgage Loans and (in either case) the
remittance of all funds due hereunder with respect to such Mortgage Loans; (ii)
by mutual consent of the Sub-Servicer and the Master Servicer in writing
pursuant to Section 5.02(b); (iii) for cause pursuant to pursuant to Article VI
of this Agreement; or (iv) upon termination of the PSA or upon the date when the
Mortgage Loans otherwise cease to be serviced and administered under the PSA.
SECTION 7.02. Transfer Following Termination, Assignment or
Resignation.
(a) Upon any termination of this Agreement under Section 7.01, a
termination of the Sub-Servicer under Section 6.01, any assignment of the
Sub-Servicer's rights and duties hereunder permitted under Section 5.02(a), any
termination of this Agreement by mutual agreement under Section 5.02(b) or any
resignation of the Sub-Servicer from its rights and duties hereunder permitted
under Section 5.02(c), as the case may be (the date of such event, the
"Sub-Servicer Termination Date"), the Sub-Servicer shall promptly (i) deliver
the portions of the Mortgage Files and Servicer Mortgage Files that are in the
possession or under the control of the Sub-Servicer to the Master Servicer or a
successor sub-servicer, as directed by the Master Servicer, (ii) remit to or at
the direction of the Master Servicer, by wire transfer of immediately available
funds, all cash held by the Sub-Servicer with respect to the Mortgage Loans, and
(iii) if so requested by the Master Servicer, assign to the Master Servicer or a
successor sub-servicer, as directed by the Master Servicer, and in such event
the Master Servicer shall assume, or cause the successor sub-servicer to assume,
all service contracts related to the Mortgage Loans transferred thereon but only
to the extent such contracts are assignable and the required consents (if any)
to such assignments have been obtained. The Sub-Servicer shall use all
reasonable efforts to obtain the consents required to effect such assignments.
(b) From and after the Primary Servicing Termination Date, the
Sub-Servicer shall promptly endorse and send to or at the direction of the
Master Servicer via overnight mail or delivery service any checks or other funds
in respect of the Mortgage Loans that are received by the Sub-Servicer.
(c) The Sub-Servicer shall provide to the Master Servicer promptly,
and in no event later than ten (10) Business Days after the Primary Servicing
Termination Date, the following information, in each case as of such date: (a) a
ledger accounting itemizing the dates and amounts of all payments made, received
or applied by the Sub-Servicer with regard to the Mortgage Loans, further
itemizing principal and interest payments, tax payments, special assessments,
hazard insurance, mortgage insurance premiums, ground rents, if any, and all
other payments and (b) a current trial balance for such Mortgage Loans.
(d) On a date to be agreed upon by the Sub-Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the Sub-Servicer shall commence and continue diligently to
completion at its own expense, to notify the Mortgagors under the Mortgage Loans
of the address to which payments on such Mortgage Loans should be sent after the
Primary Servicing Termination Date,; provided, however, that in any event,
Sub-Servicer shall be obligated to notify Mortgagors within seven (7) Business
Days following the Primary Servicing Termination Date.
(e) The Sub-Servicer shall promptly forward to the Master Servicer,
at the Sub-Servicer's expense, all Mortgagor correspondence, insurance notices,
tax bills or any other correspondence or documentation related to any Mortgage
Loan that is received by the Sub-Servicer after the Primary Servicing
Termination Date.
(f) The Sub-Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and shall forward to the Master
Servicer and any successor sub-servicer such documents as it may receive from
time to time regarding any Mortgage Loan and provide such other assistance as
may reasonably be required by the Master Servicer or any successor sub-servicer
regarding such transfer.
(g) Sub-Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans accrued through the date of
termination of its obligations and rights under this Agreement.
SECTION 7.03. Specially Serviced Mortgage Loans.
(a) The Sub-Servicer shall promptly notify the Master Servicer and
the Special Servicer, with respect to each Specially Serviced Mortgage Loan, of
any questions, complaints, legal notices, or other communications relating to
the foreclosure or default of such loans or bankruptcy proceedings of a
Mortgagor that are received by the Sub-Servicer and such other matters as would,
consistent with the Servicing Standard, require notification to the owner or the
Master Servicer of the Mortgage Loan.
(b) If the Mortgage Loans become Specially Serviced Mortgage Loans,
the Sub-Servicer shall perform the duties otherwise imposed on the Master
Servicer under Section 8.19 of the PSA, to the extent of the information,
documents and records in the possession or under the control of the
Sub-Servicer.
(c) If the Mortgage Loans become Specially Serviced Mortgage Loans,
the Master Servicer thereafter shall (a) notify the Sub-Servicer in writing
promptly following any receipt by the Master Servicer of notice from the Special
Servicer to the effect that the Mortgage Loans have become Rehabilitated
Mortgage Loans, (b) upon request by the Sub-Servicer to Master Servicer, request
from the Special Servicer copies of all relevant documents received by the
Special Servicer during the time that the Mortgage Loans were Specially Serviced
Mortgage Loans and (c) deliver to the Sub-Servicer such documents promptly
following the Master Servicer's receipt thereof, together with any relevant
documents received by the Master Servicer (other than from the Sub-Servicer)
during the time that the Mortgage Loans were Specially Serviced Mortgage Loans.
(d) At such time as the Mortgage Loans become Specially Serviced
Mortgage Loans, the servicing authorities and duties of the Sub-Servicer
hereunder that are permitted to be exercised or required to be performed (as
applicable) by the Special Servicer under the PSA shall cease. The Sub-Servicer
shall continue to have all other authorities and duties set forth herein with
respect to such Specially Serviced Mortgage Loans. If such Specially Serviced
Mortgage Loans becomes Rehabilitated Mortgage Loans, the authorities and duties
of the Sub-Servicer that ceased as set forth above shall thereupon resume.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Severability.
If any term, covenant, condition or provision hereof is unlawful,
invalid, or unenforceable for any reasons whatsoever, and such illegality,
invalidity, or unenforceability does not affect remaining part of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and have full force and effect as if the invalid or unenforceable part had not
been included.
SECTION 8.02. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative and may be exercised as often as any party considers appropriate. The
rights of each of the parties hereunder shall not be capable of being waived or
amended other than by an express waiver or amendment in writing. Any failure to
exercise (or any delay in exercising) any of such rights shall not operate as a
waiver or amendment of that or any other such right. Any defective or partial
exercise of any of such right shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way estop or preclude such party from
exercising any such right or constitute a suspension or any waiver of any such
right.
SECTION 8.03. Headings.
The headings of the Sections and Articles contained in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
SECTION 8.04. Construction.
Unless the context otherwise requires, singular nouns and pronouns,
when used herein, shall be deemed to include the plural of such noun or pronoun
and pronouns of one gender shall be deemed to include the equivalent pronoun of
the other gender. This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 8.05. Successors and Assigns.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, shall be binding upon,
and shall inure to the benefit of, the undersigned parties and their respective
successors and permitted assigns.
SECTION 8.06. Prior Understandings.
This Agreement supersedes any and all prior discussions and
agreements between or among the Sub-Servicer and the Master Servicer with
respect to the Servicing of the Mortgage Loans and the other matters contained
herein. This Agreement, together with the PSA, contains the sole and entire
understanding between the parties hereto with respect to the transactions
contemplated herein. If a conflict exists between this Agreement and the PSA,
then the PSA shall control. If this Agreement requires Sub-Servicer to perform a
task or duty, the details and obligations of which (a) are set forth in this
Agreement and (b)(i) are not set forth in the PSA or (ii) are set forth in the
PSA only in general terms, then Sub-Servicer shall perform such task and duties
in accordance with the details and obligations set forth in this Agreement. If
this Agreement requires Sub-Servicer to perform a task or duty, the details and
obligations of which are not set forth in this Agreement but are contained in
the PSA, then the Sub-Servicer shall perform such task and duties in accordance
with the PSA.
SECTION 8.07. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing any such counterpart.
SECTION 8.08. Governing Law; Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND 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 SUCH LAWS WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
SECTION 8.09. Notices
Unless otherwise provided for herein, all notices and other
communications required or permitted hereunder shall be in writing (including a
writing delivered by facsimile transmission) and shall be deemed to have been
duly given (a) when delivered, if sent by registered or certified mail (return
receipt requested), if delivered personally or by facsimile or (b) on the second
following Business Day, if sent by overnight mail or overnight courier, in each
case to the parties at the following addresses (or at such other addresses as
shall be specified by like notice);
If to the Master Servicer:
at the address set forth in Section 10.04 of the PSA;
If to the Sub-Servicer:
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ14
With a copy to:
Xxxx Xxxxxxxx, Esq.
c/o Wachovia Bank Corporation
000 X. Xxxxxxx Xx., XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Reference: Xxxxxx Xxxxxxx Capital I Inc., Series 2007-IQ14
SECTION 8.10. Amendment.
In the event that the PSA is amended, this Agreement shall be deemed
to have been amended and to the extent necessary to reflect such amendment to
the PSA; provided, however, that (i) no such amendment to the PSA or deemed
amendment to this Agreement may modify the rights or duties of the Sub-Servicer
under this Agreement without its express written consent, which consent shall
not be unreasonably withheld or delayed, and (ii) the Master Servicer shall
deliver or cause to be delivered to the Sub-Servicer a copy of such amendment
promptly following the execution and delivery thereof. This Agreement may not
otherwise be altered or modified except by a written instrument executed by the
party against whom enforcement is sought.
SECTION 8.11. Other.
This Agreement shall not be construed to grant to any party hereto
any claim, right or interest in or to the trust fund created pursuant to the PSA
or any assets of such trust fund. The preceding statement shall not be construed
to limit any contractual right granted directly to any party under the terms of
the PSA (including, without limitation, Section 8.4(a) of the PSA).
SECTION 8.12. Benefits of Agreement.
Nothing in this Agreement, express or implied, shall be construed to
grant to any Mortgagor or other Person, other than the parties to this Agreement
and the parties to the PSA, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement. Such parties to the PSA are intended
third-party beneficiaries of this Agreement. In addition, the Companion Holders
shall be third party beneficiaries of the Sub-Servicer's obligations hereunder
but any waiver by the Master Servicer of any provision hereof shall be binding
upon the Companion Holders (notwithstanding the absence of their consent
thereto), provided that such waiver is not a waiver of any covenant of the
Sub-Servicer hereunder that is specifically required to be performed in favor of
the Companion Holders under the express terms of the Intercreditor Agreements or
this Agreement or under the terms of any section of the PSA that is incorporated
herein under Section 3.01.
[signature page follows]
IN WITNESS WHEREOF, the Master Servicer and the Sub-Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
----------------------------
Name:
Title:
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Sub-Servicer
By:
----------------------------
Name:
Title:
EXHIBIT A
Form of Officer's Certificate
Commercial Mortgage Pass-Through Certificates
Series 2007-IQ14
Officer's Certificate of Sub-Servicer
I, a duly elected officer of Wachovia Bank, National Association, a
national banking association ("Wachovia"), in its capacity as Sub-Servicer under
the Sub-Servicing Agreement dated as of May 1, 2007, between Xxxxx Fargo Bank,
National Association, as Master Servicer and Wachovia as Sub-Servicer (the
"Sub-Servicing Agreement"), hereby certify, as of the date hereof that:
1. Wachovia is duly authorized to execute the Sub-Servicing
Agreement and accept and perform the obligations of the Sub-Servicer under the
Sub-Servicing Agreement.
2. The representations and warranties of the Sub-Servicer in the
Sub-Servicing Agreement are true and correct in all material respects on and as
of the date hereof.
IN WITNESS WHEREOF, Wachovia has caused this certificate to be
executed in its name by a duly authorized officer, as of the ____ day of May,
2007.
By: __________________________
Name:
Title:
EXHIBIT B
Form of Remittance Report
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Pmt Current Current
Senior Remit Wachovia Due Beg LIBOR Current Rounded Current
TransID Date Loan ID Short Name Date Balance Date LIBOR LIBOR Spread Int Rate
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Next Next Next Serv
Senior Remit Wachovia LIBOR Next Rounded Int Fee Accrual
TransID Date Loan ID Short Name Date LIBOR LIBOR Rate Rate Days Principal Interest
-----------------------------------------------------------------------------------------------------------------------------
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Prepayment /
Senior Remit Wachovia Gross Serv Net Add'l Unsched Yield Maint Exit Investor End Add'l
TransID Date Loan ID Short Name P&I Fee Int Interest Principal Fee Fee Remit Balance Loan ID
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EXHIBIT C
Forms of Loan Status Reports
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Exhibit C-1: Real estate tax monitoring report
Exhibit C-2: Insurance monitoring report
Exhibit C-3: UCC monitoring report
EXHIBIT C-1
(Real estate tax monitoring report)
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Pool Name
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TAX MONITORING REPORT
DATED AS OF (month end)
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Subservicer:
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XXXXX FARGO Subservicer Property Parcel Taxing Last Tax Last Date Next Tax Next Tax
Loan # Loan # Borrower Name Address Number Authority Amount Paid Tax Paid Amount Due Due Date
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Prepared By:________________
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Title:_______________________
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EXHIBIT C-2
(Insurance monitoring report)
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Pool Name
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INSURANCE MONITORING REPORT
DATED AS OF (month end)
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Subservicer:
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XXXXX Subservicer Expir. Type of Pol. Prem. Carrier Loss Meets Agent Agent Agent Policy Loan Coverage
FARGO Loan # Date Coverage Number Amount Payee Insurance City State Amount Bal. Difference
Loan# Xxxx. Reflects Rating
Name Trust (Y or N)
(Y or N)
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Prepared By:_________________
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Title:________________________
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EXHIBIT C-3
(UCC monitoring report)
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Pool Name
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UCC MONITORING REPORT
DATED AS OF (month end)
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Subservicer:
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XXXXX FARGO Subservicer Jurisdiction Original Continuation Next
Loan # Loan # Borrower Name (Secretary of Filing Date Filing Number Filing Date
State or
County)
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EXHIBIT D
Form of Quarterly Servicing Accounts Reconciliation Certification
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Sub-Servicer: [Name of Sub-Servicer]
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ14
Pursuant to the Sub-Servicing Agreement between Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo Bank") and [Name of Sub-Servicer] ( "Sub-Servicer")
for the transaction referenced above, I hereby certify with respect to each
mortgage loan primary serviced by Sub-Servicer for Xxxxx Fargo Bank for such
transaction that within 25 days after the end of each of the months of [January,
February and March][April, May and June][July, August and September][October,
November and December], any and all deposit accounts, escrow accounts and
reserve accounts, and any and all other collection accounts and servicing
accounts, related to such mortgage loan have been properly reconciled, and the
reconciliations have been reviewed and approved, by the Sub-Servicer's
management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, [Name of Sub-Servicer]
Date: [April, July, October, January] 25, [20__]
EXHIBIT E
Form of Day One Report
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Subservicer Name
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Pool Name
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For Payment Due:________________
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Xxxxx Fargo Subservicer Loan Beginning Actual Scheduled Scheduled Scheduled Ending Interest
Loan # # Principal Paid to Monthly P&I Principal Interest Principal Rate
Balance Date Payment Payment Payment Balance
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$ - $ - $ - $ - $ - 0.000%
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$ - $ - $ - $ - $ - 0.000%
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$ - $ - $ - $ - $ - 0.000%
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TOTAL $ - $ - $ - $ - $ -
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Prepared By:_________________
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Title:________________________
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Xxxxx Fargo Subservicing Fee Subservicing Fee Pre-payment Partial Full Prepay-ment
Loan # Rate Penalty Prepay-ment Pre-payment Date
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0.000% $ - $ - $ - $ -
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0.000% $ - $ - $ - $ -
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0.000% $ - $ - $ - $ -
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TOTAL $ - $ - $ - $ -
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