Exhibit 4.2
Sub-Servicing Agreement
See attached
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WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
and
CWCAPITAL LLC,
Sub-Servicer
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SUB-SERVICING AGREEMENT
Dated as of August 1, 2007
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COBALT CMBS Commercial Mortgage Trust 2007-C3
Commercial Mortgage Pass-Through Certificates
Series 2007-C3
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents....................................................
Section 2.02 Notice of Breach of Representations and Warranties
and Document Defects.........................................
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.......................................
Section 3.02 Merger or Consolidation of the Sub-Servicer...................
Section 3.03 Limitation on Liability of the Sub-Servicer and
Others.......................................................
Section 3.04 Sub-Servicer Not to Resign....................................
Section 3.05 Transfer or Assignment of Servicing...........................
Section 3.06 Indemnification...............................................
Section 3.07 Subcontractors and Sub-servicers..............................
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.............................................
Section 4.02 Waiver of Defaults............................................
Section 4.03 Other Remedies of Master Servicer.............................
ARTICLE V
TERMINATION
Section 5.01 Termination...................................................
Section 5.02 Termination With Cause........................................
Section 5.03 Termination of Duties with Respect to Specially
Serviced Mortgage Loans......................................
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.................................
Section 6.02 Financial Statements..........................................
Section 6.03 Closing.......................................................
Section 6.04 Closing Documents.............................................
Section 6.05 Notices.......................................................
Section 6.06 Severability Clause...........................................
Section 6.07 Counterparts..................................................
Section 6.08 Governing Law.................................................
Section 6.09 Protection of Confidential Information........................
Section 6.10 Intention of the Parties......................................
Section 6.11 Third Party Beneficiary.......................................
Section 6.12 Successors and Assigns; Assignment of Agreement...............
Section 6.13 Waivers.......................................................
Section 6.14 Exhibits......................................................
Section 6.15 General Interpretive Principles...............................
Section 6.16 Complete Agreement............................................
Section 6.17 Further Agreement.............................................
Section 6.18 Amendments....................................................
EXHIBIT A MORTGAGE LOAN SCHEDULE.....................................A-1
EXHIBIT B SUB-SERVICER'S OFFICER'S CERTIFICATE.......................B-1
EXHIBIT C POOLING AND SERVICING AGREEMENT............................C-1
EXHIBIT D [RESERVED].................................................D-1
EXHIBIT E FORM OF QUARTERLY SERVICING CERTIFICATION..................E-1
EXHIBIT F FORM OF ACCOUNT CERTIFICATION..............................F-1
EXHIBIT G FORM OF COLLECTION REPORT..................................G-1
EXHIBIT H FORM OF CERTIFICATE OF INSURANCE...........................H-1
EXHIBIT I [RESERVED].................................................I-1
EXHIBIT J FORM OF MONTHLY SERVICING ACCOUNT CERTIFICATION............J-1
This is a Sub-Servicing Agreement (the "Agreement"), dated as of August 1,
2007, by and between CWCAPITAL LLC, having an office at 00 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, and its successors and assigns (the
"Sub-Servicer"), and WACHOVIA BANK, NATIONAL ASSOCIATION, having an office at NC
1075, 0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, and its
successors and assigns (the "Master Servicer").
W I T N E S S E T H:
WHEREAS, CWCapital Commercial Funding Corp. (the "Depositor"), Xxxxx
Fargo Bank, N.A. (the "Trustee"), CWCapital Asset Management LLC (the "Special
Servicer") and the Master Servicer have entered into that certain Pooling and
Servicing Agreement dated as of August 1, 2007, as amended, modified and
restated from time to time (the "Pooling and Servicing Agreement"), whereby the
Master Servicer shall master service certain mortgage loans on behalf of the
Trustee; and
WHEREAS, the Master Servicer desires to enter into a contract with
the Sub-Servicer whereby the Sub-Servicer shall service certain of such mortgage
loans listed on Exhibit A (the "Mortgage Loan Schedule") attached hereto (the
"Mortgage Loans") on behalf of the Master Servicer.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Master Servicer and
the Sub-Servicer hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Unless otherwise specified in this Agreement, all capitalized terms not
otherwise defined herein shall have the meanings set forth in the Pooling and
Servicing Agreement. As used herein, the following terms have the meanings
assigned to them in this Section 1.01:
"Affiliate" shall mean, with respect to any specified Person, any other
Person owning or owned by or maintaining an ownership interest in such specified
Person or under common ownership with such Person.
"Collection Report" shall mean the monthly report prepared by the
Sub-Servicer setting forth, with respect to each Mortgage Loan and the most
recently ended Collection Period prior to the due date of such report, the
information described on Exhibit G attached hereto.
"Event of Default" shall have the meaning specified in Section 4.01 of
this Agreement.
"Mortgage Loans" shall have the meaning specified in the recitals hereto.
"Mortgage Loan Schedule" shall have the meaning specified in the recitals
hereto.
"Rating Requirement" shall mean either (i) a listing on S&P's Select
Servicer List as a U.S. Commercial Mortgage Primary Servicer, or (ii) a rating
of CPS3, its equivalent or higher by Fitch.
"Sub-Servicer Custodial Account" shall have the meaning specified in
Section 3.01(c)(6) of this Agreement.
"Sub-Servicer Remittance Amount" shall mean, with respect to any date, an
amount equal to, without duplication, (a) the sum of (i) the aggregate of the
amounts on deposit in the Sub-Servicer Custodial Account (as defined herein) as
of such date, (ii) any Prepayment Interest Shortfalls required to be deposited
by the Sub-Servicer pursuant to Section 3.20(a) of the Pooling and Servicing
Agreement as incorporated pursuant to Section 3.01(c)(23) of this Agreement,
(iii) if and to the extent not included in the amount referred to in subclause
(a)(i), the aggregate amount transferred from the REO Account (if established)
to the Sub-Servicer as of such date to the extent not previously remitted to the
Master Servicer and (iv) the aggregate of all other amounts received with
respect to the Mortgage Loans as of such date to the extent not previously
remitted to the Master Servicer, net of (b) the portion of the amount described
in subclause (a) of this definition that represents one or more of the
following: (i) Escrow Payments, (ii) any amounts that the Sub-Servicer is
entitled to retain as compensation pursuant to Section 3.11 of the Pooling and
Servicing Agreement as incorporated herein pursuant to Sections 3.01(c)(17) of
this Agreement and (iii) amounts payable to the Cedar Ridge Townhomes
Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion
Loan in accordance with Section 3.05A of the Pooling and Servicing Agreement as
incorporated herein pursuant to Section 3.01(c)(8) of this Agreement and
remitted to the Cedar Ridge Townhomes Subordinate Companion Loan or the
Northcrest Apartments Subordinate Companion Loan in accordance with this
Agreement.
"Sub-Servicer Remittance Date" shall mean the 8th calendar day of each
month, or if such 8th calendar day is not a Business Day, then the immediately
succeeding Business Day.
"Sub-Servicing Fee" shall mean, with respect to each Mortgage Loan and REO
Loan, the fee payable to the Sub-Servicer pursuant to Section 3.01(c)(17) of
this Agreement.
"Sub-Servicing Fee Rate" shall mean, with respect to each Mortgage Loan,
the rate that corresponds to such Mortgage Loan set forth on Exhibit A hereto
under the heading "Sub-Servicer Fee".
ARTICLE II
MASTER SERVICER'S ENGAGEMENT OF SUB-SERVICER
TO PERFORM SERVICING RESPONSIBILITIES
Section 2.01 Contract for Servicing; Possession of Mortgage Loan
Documents.
The Master Servicer, by execution and delivery of this Agreement, does
hereby contract with the Sub-Servicer, subject to the terms of this Agreement,
for the servicing of the Mortgage Loans. On and after the Closing Date, the
Sub-Servicer shall hold any portion of the Servicing File or the Mortgage File
in the possession of the Sub-Servicer in trust by the Sub-Servicer, on behalf of
the Master Servicer for the benefit of the Trustee. The Sub-Servicer's
possession of any portion of the Servicing File or the Mortgage File shall be at
the will of the Master Servicer and the Trustee for the sole purpose of
facilitating the servicing or the supervision of servicing of the related
Mortgage Loan pursuant to this Agreement, and such retention and possession by
the Sub-Servicer shall be in a custodial capacity only. Any portion of the
Servicing File or the Mortgage File retained by the Sub-Servicer shall be
identified to reflect clearly the ownership of the related Mortgage Loan by the
Trustee. The Sub-Servicer shall release from its custody any Mortgage File
retained by it only in accordance with this Agreement and the Pooling and
Servicing Agreement. The Sub-Servicer shall provide to the Master Servicer as
soon as practicable after request therefor by the Master Servicer a copy of any
documents held by it with respect to any Mortgage Loan. During the term of this
Agreement, the Sub-Servicer will also provide to the Master Servicer a copy of
any lease, amendments to Mortgage Loan documents and other material documents
related to the Mortgaged Property securing the related Mortgage Loan or related
to the Mortgage Loan as soon as possible after receipt or execution thereof, as
applicable.
Section 2.02 Notice of Breach of Representations and Warranties and
Document Defects.
The Sub-Servicer shall promptly notify the Master Servicer upon becoming
aware of any breach of any representations and warranties contained in any
applicable Mortgage Loan Purchase Agreement or a document defect that could give
rise to a cure or repurchase obligation.
ARTICLE III
SERVICING OF THE MORTGAGE LOANS
Section 3.01 Sub-Servicer to Service.
(a) The Sub-Servicer, as an independent contractor, shall service
and administer the Mortgage Loans in a manner consistent with the Servicing
Standard under the Pooling and Servicing Agreement.
(b) The Sub-Servicer shall perform, on behalf of the Master
Servicer, all of the obligations of the Master Servicer (with respect to the
Mortgage Loans subject to this Agreement) as set forth in those sections of the
Pooling and Servicing Agreement incorporated herein pursuant to Section 3.01(c)
of this Agreement (the "Incorporated Sections"), as modified by Section 3.01(c)
of this Agreement, and the Master Servicer shall have the same rights with
respect to the Sub-Servicer that the Trustee, the Depositor, the Underwriters,
the Rating Agencies and the Certificateholders (including, without limitation,
the right of the Special Servicer to direct the Master Servicer during certain
periods) have with respect to the Master Servicer under the Pooling and
Servicing Agreement to the extent that the Sub-Servicer is acting on behalf of
the Master Servicer hereunder and except as otherwise set forth herein. Without
limiting the foregoing, and subject to Section 3.22 of the Pooling and Servicing
Agreement as modified herein, the Sub-Servicer shall service and administer all
Mortgage Loans that are not Specially Serviced Mortgage Loans; provided,
however, that the Sub-Servicer shall continue to collect information and prepare
all reports to the Trustee required from the Master Servicer under the Pooling
and Servicing Agreement with respect to any Specially Serviced Mortgage Loans
and REO Properties (and the related REO Loans), and further to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for therein; provided, further,
however, that, if the Special Servicer is not an Affiliate of the Sub-Servicer,
the Sub-Servicer shall not be liable for its failure to comply with such duties
insofar as such failure results from a failure by the Special Servicer to
provide sufficient information to the Sub-Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations under
the Pooling and Servicing Agreement. All references herein to the respective
duties of the Sub-Servicer and the Special Servicer, and to the areas in which
they may exercise discretion, shall be subject to Section 3.22 of the Pooling
and Servicing Agreement, as modified herein and to the Special Servicer's rights
to service Specially Serviced Mortgage Loans. Except as otherwise set forth
below, for purposes of this Agreement, references to the Trustee, the Depositor,
the Underwriters, the Rating Agencies and the Certificateholders in the
Incorporated Sections (and in the defined terms used therein) shall be deemed to
be references to the Master Servicer hereunder and references to the Master
Servicer in the Incorporated Sections (and in the defined terms used therein)
shall be deemed to be references to the Sub-Servicer hereunder (such
modification of the Incorporated Sections shall be referred to herein as the
"References Modification").
(c) The following Sections of the Pooling and Servicing Agreement,
unless otherwise provided in this Section 3.01(c) of this Agreement, are hereby
incorporated herein by reference as if fully set forth herein, and, for purposes
of this Agreement, in addition to the References Modification, are hereby
further modified as set forth below:
(1) Section 3.01. Without limiting the generality of the
obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor and
certify the information on each Mortgage Loan as required by, and in the form
of, Exhibit E attached hereto, pursuant to Section 3.01(c)(29) of this
Agreement. In addition, without limiting the generality of the foregoing, the
Sub-Servicer shall take all necessary action to continue all UCC Financing
Statements with respect to each Mortgage Loan prior to the expiration of such
UCC Financing Statements.
(2) Section 3.02(a). The Sub-Servicer shall not waive any
Default Interest or late payment charge. The determination as to the application
of amounts collected in respect of any Mortgage Loan, to the extent the
application is not governed by the express provisions of the related Mortgage
Note or Mortgage, shall be made by the Master Servicer.
(3) Section 3.03(a). The creation of any Servicing Account
shall be evidenced by a certification in the form of Exhibit F attached hereto
and a copy of such certification shall be furnished to the Master Servicer on or
prior to the first Sub-Servicer Remittance Date and thereafter to the Master
Servicer upon any transfer of the Servicing Account.
(4) Section 3.03(b) and (c). Without limiting the generality
of the obligations of the Sub-Servicer hereunder, the Sub-Servicer shall monitor
and, within thirty (30) days after the end of each calendar quarter, beginning
with the quarter ending September 30, 2007, certify the information on each
Mortgage Loan with respect to taxes, insurance premiums, assessments, ground
rents and other similar items, as required by, and in the form of, Exhibit E
attached hereto, pursuant to Section 3.01(c)(29) of this Agreement. The
Sub-Servicer shall not be obligated to make any Servicing Advances, except as
described in the next following sentence. The Sub-Servicer shall give the Master
Servicer not less than five (5) Business Days' notice before the date on which
the Master Servicer is required to make any Servicing Advance with respect to
any Mortgage Loan; provided, however, that, with respect to any Servicing
Advance required to be made on an urgent or emergency basis such that the
Sub-Servicer is unable to provide the Master Servicer with sufficient notice to
make such Servicing Advance, the Sub-Servicer shall make such Servicing Advance
and, notwithstanding Section 3.23(a) of the Pooling and Servicing Agreement, the
Master Servicer shall reimburse the Sub-Servicer for such Servicing Advance
within five Business Days of receipt of written request therefor and interest
thereon at the Reimbursement Rate without regard to the Master Servicer's
determination of recoverability. In addition, the Sub-Servicer shall provide the
Master Servicer with such information in its possession as the Master Servicer
may reasonably request to enable the Master Servicer to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Servicing Advance.
(5) Section 3.03(d). The creation of any Reserve Account shall
be evidenced by a certification in the form of Exhibit F attached hereto and a
copy of such certification shall be furnished to the Master Servicer on or prior
to the first Sub-Servicer Remittance Date and thereafter to the Master Servicer
upon any transfer of the Reserve Account.
(6) Section 3.04(a). The Sub-Servicer shall establish a
collection account (hereinafter the "Sub-Servicer Custodial Account"), meeting
all of the requirements of the Pool Custodial Account, and references to the
Pool Custodial Account shall be references to such Sub-Servicer Custodial
Account. The creation of any Sub-Servicer Custodial Account shall be evidenced
by a certification in the form of Exhibit F attached hereto and a copy of such
certification shall be furnished to the Master Servicer on or prior to the first
Sub-Servicer Remittance Date and thereafter to the Master Servicer upon any
transfer of the Sub-Servicer Custodial Account. For purposes of the second to
last paragraph of Section 3.04(a) of the Pooling and Servicing Agreement, unless
the Special Servicer is an Affiliate of the Sub-Servicer, the Master Servicer
shall direct the Special Servicer to make payment of amounts referenced therein
directly to the Sub-Servicer for deposit in the Sub-Servicer Custodial Account.
(7) Section 3.04(b). References to the Distribution Account
shall be references to the Pool Custodial Account. References to the Master
Servicer Remittance Amount shall be references to the Sub-Servicer Remittance
Amount and references to the Master Servicer Remittance Date shall be references
to the Sub-Servicer Remittance Date. Each remittance required to be made to the
Master Servicer on the Sub-Servicer Remittance Date shall be made by wire
transfer and shall be made by 2:00 p.m. New York City time on such date. Each
month, by 2:00 p.m. New York City time, on each Business Day between the
Sub-Servicer Remittance Date and the Distribution Date, the Sub-Servicer shall
forward to the Master Servicer by wire transfer the Sub-Servicer Remittance
Amount (as defined herein) for such date; provided, however, that the
Sub-Servicer will not be in breach of its obligations under this sentence so
long as it forwards such amounts to the Master Servicer within 24 hours of its
receipt. Each month, by 2:00 p.m. New York City time on each Business Day that
the Sub-Servicer is not required to remit to the Master Servicer pursuant to the
previous sentence, the Sub-Servicer shall forward to the Master Servicer by wire
transfer all amounts collected by the Sub-Servicer and not previously remitted
to the Master Servicer which constitute delinquent payments on the Mortgage
Loans and any related late fees or Default Interest (excluding any amounts to
which the Sub-Servicer is entitled to as compensation pursuant to Section 3.11
of the Pooling and Servicing Agreement as incorporated herein pursuant to
Sections 3.01(c)(17) of this Agreement); provided, however, that the
Sub-Servicer will not be in breach of its obligations under this sentence so
long as it forwards such amounts to the Master Servicer within 24 hours of its
receipt. Section 3.01(c)(29) of this Agreement sets forth certain reporting
requirements with respect to such remittances. The third (as to clause (i)
thereof) and fourth paragraphs of Section 3.04(b) of the Pooling and Servicing
Agreement are not incorporated herein.
(8) Section 3.04A(a). The Sub-Servicer shall establish a
collection account (hereinafter the "Sub-Servicer Loan Combination Custodial
Account") for each of the Cedar Ridge Townhomes Loan Combination and the
Northcrest Apartments Loan Combination, meeting all of the requirements of a
Loan Combination Custodial Account, and references to the Loan Combination
Custodial Account shall be references to such Sub-Servicer Loan Combination
Custodial Account. The creation of any Sub-Servicer Loan Combination Custodial
Account shall be evidenced by a certification in the form of Exhibit F attached
hereto and a copy of such certification shall be furnished to the Master
Servicer on or prior to the first Sub-Servicer Remittance Date and thereafter to
the Master Servicer upon any transfer of the Sub-Servicer Loan Combination
Custodial Account. For purposes of the third paragraph of Section 3.04A(a) of
the Pooling and Servicing Agreement, unless the Special Servicer is an Affiliate
of the Sub-Servicer, the Master Servicer shall direct the Special Servicer to
make payment of amounts referenced therein directly to the Sub-Servicer for
deposit in the related Sub-Servicer Loan Combination Custodial Account.
(9) Section 3.05 of the Pooling and Servicing Agreement is not
incorporated herein. The Sub-Servicer may, from time to time, make withdrawals
from the Sub-Servicer Custodial Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Master Servicer for deposit in the
Pool Custodial Account the amounts required to be so deposited pursuant to the
first paragraph of Section 3.04(b) of the Pooling and Servicing Agreement and
Section 3.01(c)(7) of this Agreement;
(ii) to pay to itself earned and unpaid Sub-Servicing
Fees in respect of each Mortgage Loan and REO Loan, the Sub-Servicer's right to
payment pursuant to this clause (ii) with respect to any Mortgage Loan or REO
Loan being limited to amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance Proceeds) or
such REO Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest thereon;
(iii) to pay to itself, as additional servicing
compensation in accordance with Section 3.11 of the Pooling and Servicing
Agreement, interest or other income earned in respect of amounts held in the
Sub-Servicer Custodial Account as provided in Section 3.01(c)(10) of this
Agreement, but only to the extent of the Net Investment Earnings, if any, with
respect to the Sub-Servicer Custodial Account for any Collection Period;
(iv) to clear and terminate the Sub-Servicer Custodial
Account at the termination of this Agreement pursuant to Section 9.01 of the
Pooling and Servicing Agreement, as modified herein; and
(v) to withdraw any amounts deposited in the
Sub-Servicer Custodial Account in error.
The Sub-Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Sub-Servicer Custodial Account pursuant
to clauses (ii) and (iii) above.
(9A) Section 3.05A. References to a Loan Combination Custodial
Account shall be references to the applicable Sub-Servicer Loan Combination
Custodial Account, references to the Pool Custodial Account shall be references
to the Sub-Servicer Custodial Account and references to the Master Servicer
Remittance Date shall be references to the Sub-Servicer Remittance Date. The
Sub-Servicer shall make remittances to the holders of the Cedar Ridge Townhomes
Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion
Loan as contemplated by Section 3.05A(i). The withdrawal from the Sub-Servicer
Loan Combination Custodial Accounts for the Cedar Ridge Townhomes Subordinate
Companion Loan and the Northcrest Apartments Subordinate Companion Loan shall be
made on or prior to the Master Servicer Remittance Date in the related month in
accordance with the applicable provisions of the related Co-Lender Agreement and
the remittance contemplated by Section 3.05A(i) to the Trust with regard to the
Loan Combination Trust Mortgage Loans shall be made on or prior to the
Sub-Servicer's remittance of the Sub-Servicer Remittance Amount to the Master
Servicer on the Sub-Servicer Remittance Date in the related month. References to
the Master Servicing Fee shall be references to the Sub-Servicing Fee. All
amounts that may be withdrawn from a Sub-Servicer Loan Combination Custodial
Account for the Cedar Ridge Townhomes Subordinate Companion Loan or the
Northcrest Apartments Subordinate Companion Loan for payment or reimbursement to
the Master Servicer, the Special Servicer, the Trustee or any other Person
(other than the Sub-Servicer or the holder of the Cedar Ridge Townhomes
Subordinate Companion Loan or the Northcrest Apartments Subordinate Companion
Loan) shall be remitted to the Master Servicer for payment or application by the
Master Servicer.
(10) Section 3.06 of the Pooling and Servicing Agreement is
not incorporated herein. The Sub-Servicer may invest funds in the Sub-Servicer
Custodial Account, any Sub-Servicer Loan Combination Account and any Servicing
Account on the same terms as the Master Servicer may invest funds in the Pool
Custodial Account, Loan Combination Account and any Servicing Account, and
subject to the same restrictions and obligations regarding maturity dates,
gains, losses, possession of Permitted Investments and Permitted Investments
payable on demand. Without limiting the generality of the foregoing, (A) any
investment of funds in the Sub-Servicer Custodial Account or a Servicing Account
shall be made in the name of the Trustee (in its capacity as such); (B) the
Sub-Servicer, on behalf of the Trustee for the benefit of the
Certificateholders, shall be the "entitlement holder", as such term is defined
in the UCC, of any Permitted Investment that is a "security entitlement", as
such term is defined in the UCC; (C) the Sub-Servicer, on behalf of the Trustee
for the benefit of the Certificateholders, shall maintain continuous possession
of any Permitted Investment in which a secured party may perfect its security
interest by possession under the UCC or any other applicable law; (D) the
Sub-Servicer, on behalf of the Trustee for the benefit of the
Certificateholders, shall maintain "control", as such term is defined in the
UCC, of any Permitted Investment in which a secured party may perfect its
security interest by "control" under the UCC and in which Sub-Servicer is not
required to maintain continuous possession pursuant to clause (C) above; (E)
possession of any Permitted Investment by the Sub-Servicer shall constitute
possession by a Person designated by, and acting on behalf of, the Trustee, as
secured party for purposes of the UCC; and (F) "control" of any Permitted
Investment by the Sub-Servicer shall constitute "control" by a Person designated
by, and acting on behalf of, the Trustee, as secured party for purposes of the
UCC.
(11) Section 3.07(a). All insurance policies caused to be
maintained by the Sub-Servicer hereunder shall also, within thirty (30) days of
execution, name the Master Servicer as additional insured and loss payee in the
following form: "Wachovia Bank, National Association, as Master Servicer on
behalf of Xxxxx Fargo Bank, N.A. as Trustee for the benefit of the
Certificateholders of COBALT CMBS Commercial Mortgage Trust 2007-C3, Commercial
Mortgage Pass-Through Certificates Series 2007-C3, x/x XXXxxxxxx XXX, Xxx
Xxxxxxx Xxxxx Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, as
Sub-Servicer, its successors and assigns "ATIMA".". Within thirty (30) days
after the Closing Date, the Sub-Servicer shall forward to the Master Servicer, a
fully completed certificate of insurance in the form of Exhibit H attached
hereto. Without limiting the generality of the obligations of the Sub-Servicer
hereunder, the Sub-Servicer shall monitor and, within thirty (30) days after the
end of each calendar quarter beginning with the quarter ending September 30,
2007, certify on the status of insurance policies relating to the Mortgage
Loans, as required by, and in the form of, Exhibit E attached hereto, pursuant
to Section 3.01(c)(29) of this Agreement. The Sub-Servicer shall promptly notify
the Master Servicer of any Mortgaged Property that is not insured against
terrorist or other similar acts.
(12) Section 3.07(b). References to the Pool Custodial Account
shall be references to the Sub-Servicer Custodial Account.
(13) Section 3.07(c). The fidelity bond and insurance policies
required hereunder shall also, within thirty (30) days of execution, name the
Master Servicer as additional insured and loss payee in the following form:
"Wachovia Bank, National Association, as Master Servicer on behalf of Xxxxx
Fargo Bank, N.A. as Trustee for the benefit of the Certificateholders of COBALT
CMBS Commercial Mortgage Trust 2007-C3, Commercial Mortgage Pass-Through
Certificates Series 2007-C3, x/x XXXxxxxxx XXX, Xxx Xxxxxxx Xxxxx Xxxxx, 00
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, as Sub-Servicer, its successors
and assigns "ATIMA"." The last paragraph of Section 3.07(c) shall be applicable
to the Sub-Servicer without the References Modification.
(14) Section 3.08. For so long as the Sub-Servicer is an
Affiliate of the Special Servicer, and subject to Section 3.01(c)(24) of this
Agreement, Section 3.08(a) of the Pooling and Servicing Agreement shall be
incorporated herein with the References Modification and the Sub-Servicer shall
perform the obligations of the Master Servicer under such Section 3.08 of the
Pooling and Servicing Agreement, subject to all requirements and restrictions
set forth in Section 3.08 and shall be entitled to related fees as described in
Section 3.01(c)(17) of this Agreement; provided, however, that the Sub-Servicer
shall copy the Master Servicer on all correspondence to the Special Servicer and
Mortgagor regarding such matters and the Sub-Servicer shall prepare any package
and analysis necessary to obtain any required Rating Agency no-downgrade
confirmation and shall deal with the Rating Agencies to obtain such
confirmation. Notwithstanding the foregoing, in the event that the Sub-Servicer
is no longer an Affiliate of the Special Servicer, (i) references to the Master
Servicer shall not be deemed references to the Sub-Servicer for purposes of
Sections 3.08(a) and (b) of the Pooling and Servicing Agreement; (ii) the
Sub-Servicer will not permit an assumption of a Mortgage Loan or a transfer of
an interest in the Mortgagor or waive any restrictions contained in the related
Mortgage on transfer of an interest in the related Mortgaged Property or
Mortgagor or on subordinate financing; (iii) the Sub-Servicer shall forward all
assumption or transfer of interest requests or subordinate financing requests to
the Master Servicer for processing and shall obtain and provide to the Master
Servicer information necessary for the analysis of such request; (iv) the
Sub-Servicer shall make a recommendation to the Master Servicer with respect to
such request and (iv) with respect to any assumption fees, application fees and
other fees or charges in connection with an assumption or transfer of interest
request or subordinate financing request payable to the Master Servicer pursuant
to the Pooling and Servicing Agreement, such amounts shall be paid 50% to the
Master Servicer and 50% to the Sub-Servicer.
(15) Section 3.09. References to the Master Servicer shall not
be deemed references to the Sub-Servicer for purposes of Section 3.09 of the
Pooling and Servicing Agreement. In addition to the CMSA Delinquent Loan Status
Report required by Section 3.01(c)(21) of this Agreement, on the 18th day, the
25th day, and the last Business Day of each month (commencing in September
2007), the Sub-Servicer shall provide to the Master Servicer and the Special
Servicer a CMSA Delinquent Loan Status Report, provided that the information set
forth in such report shall be as of the close of business on the Business Day
immediately preceding the delivery of such report.
(16) Section 3.10. The references to the Custodial Account in
the second parenthetical of Section 3.10(a) of the Pooling and Servicing
Agreement shall be references to the Sub-Servicer Custodial Account. No expense
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Sub-Servicer Custodial Account.
(17) Section 3.11(a). References to the Master Servicing Fee
shall be references to the Sub-Servicing Fee, and references to the Master
Servicing Fee Rate shall be references to the Sub-Servicing Fee Rate. All
references to the Custodial Account shall be references to the Sub-Servicer
Custodial Account. Any late payment or other fees (including Penalty Interest)
paid in respect of a delinquent loan to which the Master Servicer is entitled
under the Pooling and Servicing Agreement (other than as payment of interest on
Advances or other reimbursement of Additional Trust Fund Expenses) shall be
divided equally between the Sub-Servicer and the Master Servicer if the
Sub-Servicer participates in the realization upon such delinquent loan, and
shall otherwise be paid to the Master Servicer. The Sub-Servicer shall not be
entitled to (a) Prepayment Interest Excesses or (b) except as provided in the
next two sentences or in Section 3.01(d) of this Agreement, any modification
fees, application fees or other fees or charges in connection with a
modification request or other borrower request, collected with respect to the
Mortgage Loans. Notwithstanding the foregoing, so long as the Sub-Servicer is an
Affiliate of the Special Servicer, the Sub-Servicer shall be entitled to all
assumption fees and assumption application fees collected from a Mortgagor in
connection with an assumption or transfer contemplated by Section 3.08(a) of the
Pooling and Servicing Agreement and any fees in connection with a
Tenants-In-Common Loan contemplated by Section 3.08(a) of the Pooling and
Servicing Agreement to which the Master Servicer is entitled under the Pooling
and Servicing Agreement. Notwithstanding the foregoing, in the event that the
Sub-Servicer is no longer an Affiliate of the Special Servicer, with respect to
any assumption fees, application fees and other fees or charges in connection
with an assumption or transfer of interest request or subordinate financing
request payable to the Master Servicer pursuant to the Pooling and Servicing
Agreement, such amounts shall be paid 50% to the Master Servicer and 50% to the
Sub-Servicer.
(18) Section 3.11(b). References to the Special Servicer shall
remain references to the Special Servicer.
(19) Section 3.11(c). References to the Master Servicer shall
not be deemed to be references to the Sub-Servicer for purposes of Section
3.11(c) of the Pooling and Servicing Agreement. Any such fees referred to in
Section 3.11(c) of the Pooling and Servicing Agreement recovered by the
Sub-Servicer shall be paid by the Sub-Servicer to the Master Servicer for
distribution in accordance with the Pooling and Servicing Agreement.
(20) Section 3.13(a) and (b). The Sub-Servicer shall promptly
(but in no event later than thirty (30) days after receipt of the related
inspection report or collection, as applicable) forward to the Master Servicer a
copy of all inspection reports prepared by the Sub-Servicer and all operating
statements and rent rolls collected by the Sub-Servicer. The Sub-Servicer may
engage a third party at its cost to perform property inspections and prepare
property inspection reports without first obtaining the consent of the Master
Servicer; provided, however, that the Sub-Servicer shall remain obligated and
primarily liable to the Master Servicer for satisfactory completion of the
inspections and reports in a manner consistent with the Servicing Standard and
otherwise as required by this Agreement. The Sub-Servicer shall promptly forward
each CMSA NOI Adjustment Worksheet prepared in accordance with the requirements
of the Pooling and Servicing Agreement to the Master Servicer within twenty (20)
days after receipt of the related borrower reports and each CMSA Operating
Statement Analysis Report to the Master Servicer within twenty (20) days after
receipt of a quarterly operating statement.
(21) Section 3.13(d) is not incorporated herein. The
Sub-Servicer shall deliver to the Master Servicer, no later than 1:00 p.m. New
York City time on the second Business Day preceding the Determination Date, by
electronic transmission in the format designated by the Master Servicer, the
CMSA Property File and the CMSA Comparative Financial Status Report, each
providing the required information as of the end of the preceding calendar
month. The Sub-Servicer shall deliver to the Master Servicer and the Special
Servicer, no later than 1:00 p.m. New York City time on the first Business Day
following the Determination Date, by electronic transmission in the format
designated by the Master Servicer, a CMSA Historical Liquidation Report, a CMSA
Loan Periodic Update File, a CMSA Financial File, a CMSA Loan Level Reserve/LOC
Report, a CMSA Advance Recovery Report, a CMSA Delinquent Loan Status Report and
a CMSA Servicer Watchlist, each providing the required information as of such
Determination Date. The Sub-Servicer shall deliver to the Master Servicer and
the Special Servicer, no later than 1:00 pm New York City time on the first
Business Day of each calendar month, by electronic transmission in the format
designated by the Master Servicer, a CMSA Delinquent Loan Status Report,
providing required information as of the last Business Day of the preceding
calendar month. At the request of the Master Servicer, the Sub-Servicer shall
send to each Mortgagor a notice directing the Mortgagor to forward to the
Special Servicer annual, quarterly and monthly operating statements, budgets and
rent rolls of the related Mortgaged Property, and financial statements of the
related Mortgagor in accordance with and as provided for in the underlying loan
documents.
(21A) Section 3.14.
(21B) Section 3.15.
(22) Section 3.16. The second paragraph of Section 3.16 of the
Pooling and Servicing Agreement is not incorporated herein.
(23) Section 3.20(a), (b), (c) and (d). References in Section
3.20(a) to the Master Servicer Remittance Date shall be references to the
Sub-Servicer Remittance Date. The Sub-Servicer shall inform the ground lessor
that any notices of default under the related Ground Lease should thereafter be
forwarded to the Sub-Servicer and the Sub-Servicer shall promptly forward copies
of any such notices received to the Master Servicer. The Sub-Servicer shall also
inform the hospitality franchisor that any notices of default under the related
franchise agreement should thereafter be forwarded to the Sub-Servicer and the
Sub-Servicer shall promptly forward copies of any such notices received to the
Master Servicer.
(24) Section 3.21. The Sub-Servicer shall be permitted to
approve any transaction that the Master Servicer may approve without the consent
of the Special Servicer under Section 3.21 of the Pooling and Servicing
Agreement, subject to the limitations set forth in Section 3.28; provided that
in the event that the Sub-Servicer in the good faith and reasonable judgment of
the Master Servicer violates the Servicing Standard or otherwise commits an
"Event of Default" under the Pooling and Servicing Agreement in connection with
the granting or withholding of any such approval (including, without limitation,
any approvals set forth in Section 3.08 of the Pooling and Servicing Agreement,
the approval and processing of any defeasance and any approvals described in
Section 3.01(d) of this Agreement), the Sub-Servicer thereafter shall no longer
be permitted to exercise the foregoing approval rights and shall thereafter be
required to seek the approval of the Master Servicer. The Sub-Servicer in
processing each of these transactions will be required to apprise the Master
Servicer from time to time of its actions and shall schedule monthly conference
calls with the Master Servicer to discuss any of the aforementioned transactions
that it is processing. The Sub-Servicer shall provide all reasonable cooperation
to the Master Servicer in connection with the Master Servicer's duties under the
Pooling and Servicing Agreement to oversee sub-servicers. Such cooperation shall
include (without limitation) notifying the Master Servicer of any such
transaction, and the Sub-Servicer shall make itself available for
teleconferences from time to time upon reasonable request of the Master Servicer
in connection therewith. Immediately following the completion of each
transaction, the Sub-Servicer shall send the Master Servicer copies of all of
the evaluation and approval documentation created in connection with such
transaction. Notwithstanding anything contained in this Agreement to the
contrary and with respect to any action to be taken by the Sub-Servicer
hereunder which requires the consent of the Special Servicer and/or the
Controlling Class Representative pursuant to the Pooling and Servicing
Agreement, so long as the Sub-Servicer is an Affiliate of the Special Servicer,
the Sub-Servicer shall be permitted to seek directly the consent and/or approval
of the Special Servicer and/or the Controlling Class Representative, as
applicable. The Sub-Servicer shall provide the Master Servicer written notice of
any such action referenced in the immediately preceding sentence.
Notwithstanding anything herein or in the Pooling and Servicing Agreement
to the contrary, the Sub-Servicer shall be entitled to make any determination,
without the consent of the Master Servicer, to grant or withhold approval of any
defeasance of any related Mortgage Loan in whole or in part, shall be entitled
to process such defeasance and shall be entitled to the entirety of any fees
payable in connection with such defeasance.
(25) Section 3.22(a). The Sub-Servicer shall promptly notify
the Master Servicer of any event or circumstance that the Sub-Servicer deems to
constitute a Servicing Transfer Event with respect to any Mortgage Loan. The
determination as to whether a Servicing Transfer Event has occurred shall be
made by the Master Servicer. The Master Servicer shall promptly notify the
Sub-Servicer of any determination that a Servicing Transfer Event with respect
to any Mortgage Loan has occurred. Upon receipt by the Master Servicer of notice
from the Special Servicer that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan, the Master Servicer shall promptly give the
Sub-Servicer notice thereof and the obligation of the Sub-Servicer to service
and administer such Mortgage Loan shall resume.
(26) Sections 3.22(b) and (c) of the Pooling and Servicing
Agreement are not incorporated herein. The Sub-Servicer shall give prompt notice
to the Master Servicer of any Servicing Transfer Event and shall continue to
process payments and maintain ongoing payment records with respect to each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan or an REO Property
and shall timely provide the Master Servicer and the Special Servicer with any
information required by either to perform their respective duties under the
Pooling and Servicing Agreement.
(27) Section 3.23. References to the Master Servicer shall not
be deemed to be references to the Sub-Servicer for purposes of Section 3.23 of
the Pooling and Servicing Agreement. Each provision of Section 3.23 of the
Pooling and Servicing Agreement shall be enforceable against the Sub-Servicer in
accordance with the terms thereof.
(28) Section 3.24. Section 3.24(a)(i) of the Pooling and
Servicing Agreement shall be deemed modified to read "The Sub-Servicer is a
limited liability company, validly existing and in good standing under the laws
of Massachusetts, and the Sub-Servicer is in compliance with the laws of each
State in which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement." Each insurance policy and
fidelity bond referenced in Section 3.07(c) of the Pooling and Servicing
Agreement names any successor or assign of the Sub-Servicer as an additional
insured and loss payee. The Sub-Servicer is authorized to transact business in
each state in which a Mortgaged Property is located, if and to the extent
required by applicable law. The Sub-Servicer has a net worth, determined in
accordance with generally accepted accounting principles, of at least
$5,000,000. The Sub-Servicer is an approved conventional seller/servicer of
mortgage loans for FHLMC or Xxxxxx Xxx or a HUD-Approved Servicer. The
Sub-Servicer is not a Prohibited Party.
(29) Section 4.02(b) is not incorporated herein. The
Sub-Servicer shall deliver to the Master Servicer and the Special Servicer by
electronic transmission (in a format designated by the Master Servicer) (a) not
later than 1:00 p.m. New York City time on the first Business Day following each
Determination Date, the Collection Report (the information therein to be stated
as of the Determination Date) and (b) within thirty (30) days after the end of
each calendar quarter, beginning with the quarter ending September 30, 2007, the
certification on the Mortgage Loans, including without limitation information
regarding UCC Financing Statements, taxes, insurance premiums and ground rents,
required by and in the form of Exhibit E attached hereto. The Sub-Servicer shall
deliver to the Master Servicer no later than 1:00 pm New York City time on the
second Business Day of each month by electronic transmission in a format
designated by the Master Servicer, a remittance report containing scheduled
balance information for each Mortgage Loan reflecting the scheduled Periodic
Payment for such month in the form of Exhibit G attached hereto. In addition, on
each day that the Sub-Servicer forwards to the Master Servicer any funds
pursuant to Section 3.01(c)(7) of this Agreement, the Sub-Servicer shall deliver
to the Master Servicer by electronic transmission in a format designated by the
Master Servicer, a report of the nature of such remittance in the form of
Exhibit G attached hereto. The Sub-Servicer shall also prepare and deliver to
the Master Servicer and Special Servicer not later than 1:00 p.m. New York City
time within thirty (30) days after each Determination Date, a certification in
the form of Exhibit J attached hereto.
(30) Section 4.03 of the Pooling and Servicing Agreement is
not incorporated herein. The Sub-Servicer shall have no obligation to make P&I
Advances.
(31) Section 11.01. The Sub-Servicer shall reasonably
cooperate with the Master Servicer and/or the Depositor in connection with their
compliance with Regulation AB.
(32) Section 11.02.
(33) Sections 11.03(a) and (b) of the Pooling and Servicing
Agreement are not incorporated herein. The Sub-Servicer shall provide all
reasonable assistance to the Master Servicer to enable it to comply with
Sections 11.03(a) and (b) of the Pooling and Servicing Agreement.
(34) Section 11.04. The Sub-Servicer shall provide all
reasonable cooperation to the Master Servicer to enable the Master Servicer to
fulfill all of the obligations of the Master Servicer under Section 11.04 of the
Pooling and Servicing Agreement and shall provide any Additional Form 10-D
Disclosure and Additional Disclosure Notification required to be delivered by a
sub-servicer pursuant to Section 11.04 of the Pooling and Servicing Agreement.
Any Additional Form 10-D Disclosure and related Additional Disclosure
Notification required to be delivered by the Sub-Servicer shall be delivered to
the Master Servicer, in addition to the Depositor and the Trustee, within the
time provided in Section 11.04(a).
(35) Section 11.05. The Sub-Servicer shall provide all the
reports required of a Sub-Servicer under Section 11.05 of the Pooling and
Servicing Agreement. The Sub-Servicer shall provide any Additional Form 10-K
Disclosure and Additional Disclosure Notification required to be delivered by a
sub-servicer pursuant to Section 11.05 of the Pooling and Servicing Agreement.
Any Additional Form 10-K Disclosure and related Additional Disclosure
Notification required to be delivered by the Sub-Servicer shall be delivered to
the Master Servicer, in addition to the Depositor and the Trustee, within the
time provided in Section 11.05(a).
(36) Section 11.06. The Sub-Servicer shall provide all
reasonable cooperation to the Master Servicer to enable the Master Servicer to
fulfill its obligations under Section 11.06 of the Pooling and Servicing
Agreement including provision of all of the reports and information required of
a Reporting Party to the Master Servicer whether or not it meets the criteria
set forth in the definition thereof in the Pooling and Servicing Agreement no
later than 5 Business Days prior to the date on which the Master Servicer must
provide such information to the Trust. At least 5 Business Days before the day
the Master Servicer is required to deliver its certification under Section 11.06
of the Pooling and Servicing Agreement, the Sub-Servicer shall provide a backup
certificate substantially similar to any certification required to be delivered
by the Master Servicer pursuant to Section 11.06 of the Pooling and Servicing
Agreement and shall provide such information and assistance as may be reasonably
required and shall cooperate with the Master Servicer in complying with Section
11.06 of the Pooling and Servicing Agreement. The Sub-Servicer shall perform all
of the obligations required of a Servicing Function Participant and/or an
Additional Servicer and/or Reporting Servicer under Section 11.06 of the Pooling
and Servicing Agreement, except that to the extent it would not constitute
either such party for purposes of the Pooling and Servicing Agreement, it shall
only be required to deliver any such items to the Master Servicer. The
Sub-Servicer represents and warrants that each certification delivered pursuant
to this Section 3.01(c)(36) will be true, complete and correct. In addition, the
Sub-Servicer shall cooperate with Master Servicer's reasonable requests in
performing its due diligence for its certification under Section 11.06 of the
Pooling and Servicing Agreement. The Sub-Servicer shall indemnify and hold
harmless the Master Servicer for all losses, liabilities, claims, damages, costs
and expenses (including, without limitation, legal costs, fees and expenses)
resulting from a breach of, or mistake or omission in, any certification given
pursuant to this Section 3.01(c)(36). If the indemnification provided for herein
is unavailable or insufficient to hold harmless the Master Servicer, then the
Sub-Servicer agrees that it shall contribute to the amount paid or payable by
the Master Servicer as a result of the losses, claims, damages or liabilities of
the Master Servicer in such proportion as is appropriate to reflect the relative
fault of the Master Servicer on the one hand and the Sub-Servicer on the other
in connection with a breach of the Sub-Servicer obligations under this Section
3.01(c)(36) or the Sub-Servicer's negligence, bad faith or willful misconduct in
connection therewith.
(37) Section 11.07. The Sub-Servicer shall promptly notify the
Master Servicer to the extent that it becomes aware of any Reportable Event. The
Sub-Servicer shall provide all reasonable cooperation to the Master Servicer for
the Master Servicer to fulfill its obligations under Section 11.07 of the
Pooling and Servicing Agreement, including consultation with the Master Servicer
with respect to any Reportable Event, and shall provide any Form 8-K Disclosure
Information and Additional Disclosure Notification required to be delivered by a
sub-servicer pursuant to Section 11.07 of the Pooling and Servicing Agreement.
The Sub-Servicer shall notify the parties to the Pooling and Servicing Agreement
of any Reportable Event in the time frame set forth in Section 11.07 of the
Pooling and Servicing Agreement.
(38) Sections 11.09 and 11.10. The reports set forth in
Sections 11.09 and 11.10 of the Pooling and Servicing Agreement shall be
delivered by the Sub-Servicer by March 1st (subject to a grace period no later
than March 10th) of each year, beginning March 2008. If the Sub-Servicer is a
Servicing Function Participant or Additional Servicer, such reports shall be
delivered to the Master Servicer and all the parties specified in Sections 11.09
and 11.10 of the Pooling and Servicing Agreement, and if the Sub-Servicer is not
a Servicing Function Participant or Additional Servicer, such report shall be
delivered only to the Master Servicer.
(39) Section 11.11. The accountant's report referenced in
Section 11.11 of the Pooling and Servicing Agreement shall be delivered by the
Sub-Servicer (without regarding whether the Sub-Servicer is a Servicing Function
Participant) by March 1st (subject to a grace period no later than March 10th )
of each year, beginning March 2008. If the Sub-Servicer is a Servicing Function
Participant, the report shall be delivered to the Master Servicer and all the
parties specified in Section 11.11 of the Pooling and Servicing Agreement, and
if the Sub-Servicer is not a Servicing Function Participant, such report shall
be delivered only to the Master Servicer.
(40) Section 11.12. The Sub-Servicer shall indemnify and hold
harmless each Certification Party and the Master Servicer 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 such Certification Party or the Master Servicer arising out of (i) a
breach of its obligations to provide any of the annual compliance statements or
annual servicing criteria compliance reports or attestation reports pursuant to
this Agreement or Article XI of the Pooling and Servicing Agreement as
incorporated herein, (ii) an actual breach by the Sub-Servicer or any other of
its obligations under Article XI of the Pooling and Servicing Agreement as
incorporated herein, (iii) negligence, bad faith or willful misconduct on its
part in the performance of such obligations or (iv) any failure by the
Sub-Servicer to identify a Servicing Function Participant retained by it
pursuant to Section 11.02(c) of the Pooling and Servicing Agreement.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless any Certification Party or the Master Servicer, then the
Sub-Servicer shall contribute to the amount paid or payable to the Certification
Party or the Master Servicer as a result of the losses, claims, damages or
liabilities of the Certification Party or the Master Servicer, as applicable, in
such proportion as is appropriate to reflect the relative fault of the
Certification Party or the Master Servicer, as applicable, on the one hand and
the Sub-Servicer on the other in connection with a breach of the Sub-Servicer's
obligations pursuant to Article XI of the Pooling and Servicing Agreement as
incorporated herein or the Sub-Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(d) Notwithstanding anything contained in this Agreement to
the contrary but subject to Section 3.01(c)(24) of this Agreement, and with
respect to any action to be taken by the Sub-Servicer hereunder which (x)
requires the consent of the Master Servicer pursuant to this Agreement and (y)
requires the consent of the Special Servicer and/or the Controlling Class
Representative pursuant to the Pooling and Servicing Agreement, so long as the
Sub-Servicer is an Affiliate of the Special Servicer, the Sub-Servicer shall be
permitted to seek directly the consent and/or approval of the Special Servicer
and/or the Controlling Class Representative, as applicable without first seeking
the consent and/or approval of the Master Servicer and the Sub-Servicer shall be
entitled to all related fees that otherwise would have been payable to the
Master Servicer in connection with obtaining such consent and/or approval. The
Sub-Servicer shall provide the Master Servicer written notice of any such action
referenced in the immediately preceding sentence.
Section 3.02 Merger or Consolidation of the Sub-Servicer.
The Sub-Servicer shall keep in full effect its existence, rights and
franchises as a limited liability company under the laws of the state of its
organization except as permitted herein, and shall obtain and preserve its
qualification to do business as a foreign limited liability company in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement or any of the Mortgage Loans and
to perform its duties under this Agreement.
Any Person into which the Sub-Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Sub-Servicer shall be a party, or any Person succeeding to the business of
the Sub-Servicer, shall be the successor of the Sub-Servicer hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
however, that the successor or surviving Person (a) shall assume in writing the
obligations of the Sub-Servicer under this Agreement and (b) must be acceptable
to the Master Servicer (which acceptance shall not be unreasonably withheld or
delayed).
Section 3.03 Limitation on Liability of the Sub-Servicer and Others.
Neither the Sub-Servicer nor any of the officers, employees or agents of
the Sub-Servicer shall be under any liability to the Master Servicer for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Sub-Servicer against liability to the
Master Servicer for any breach of a representation, warranty or covenant made
herein, or failure to perform its obligations in strict compliance with the
Servicing Standard, or any liability which would otherwise be imposed by reason
of any breach of the terms and conditions of this Agreement, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The
Sub-Servicer and any officer, employee or agent of the Sub-Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The
Sub-Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action unless such action is related to its duties under this
Agreement and, unless it is specifically required hereunder to bear the costs of
such legal action, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Sub-Servicer may, with the consent of the
Master Servicer, undertake any such action which it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for which
the Master Servicer will be liable and the Sub-Servicer shall be entitled to be
reimbursed therefor from the Master Servicer upon written demand. The
Sub-Servicer shall be indemnified by the Master Servicer against any loss,
liability or reasonable expense incurred in connection with the performance by
the Sub-Servicer of the terms and conditions of this Agreement, other than any
loss, liability or expense; (i) specifically required to be borne by the
Sub-Servicer without right of reimbursement pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made herein; or (iii) incurred by reason of misfeasance, bad faith or negligence
in the performance of obligations or duties hereunder; provided, however, that
the Master Servicer's obligation to so indemnify the Sub-Servicer shall be
strictly limited to any actual amount of indemnification received by the Master
Servicer therefor under the Pooling and Servicing Agreement. The Master Servicer
shall pursue in good faith any rights that it has to any indemnity under the
Pooling and Servicing Agreement.
Section 3.04 Sub-Servicer Not to Resign.
The Sub-Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Sub-Servicer's duties hereunder are
no longer permissible under applicable law or are in material conflict by reason
of applicable law with any other activities carried on by it (the other
activities of the Sub-Servicer so causing such a conflict being of a type and
nature carried on by the Sub-Servicer at the date of this Agreement) and
provides 90 days advance notice thereof to the Master Servicer. Any such
determination permitting the resignation of the Sub-Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Master Servicer, which
Opinion of Counsel shall be in form and substance reasonably acceptable to the
Master Servicer.
Section 3.05 Transfer or Assignment of Servicing.
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 may assign,
sell or transfer its rights and duties under this Agreement in whole and not in
part to a parent company of Sub-Servicer or a wholly-owned subsidiary or
Affiliate of such party; (ii) the Sub-Servicer shall be entitled to employ
subcontractors to the extent provided in this Agreement and (iii) 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 approval of the Master
Servicer, such approval not to be unreasonably conditioned or delayed. Any such
assignment under this Section 3.05 shall (i) not be effective (other than an
assignment to a subcontractor described in clause (ii) above) until the
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 (ii) not
relieve the assigning Sub-Servicer of any duties or liabilities arising or
incurred prior to such assignment. The Sub-Servicer shall pay or cause to be
paid any costs or expenses incurred in connection with such assignment. Any
assignment or delegation or attempted assignment or delegation in contravention
of this Agreement shall be null and void.
Section 3.06 Indemnification.
The Master Servicer and the Sub-Servicer each agrees to and hereby does
indemnify and hold harmless the Master Servicer, in the case of the
Sub-Servicer, and the Sub-Servicer, in the case of the Master Servicer
(including any of their 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) resulting from (i) any breach by the indemnitor of a representation,
warranty, covenant or agreement made by it herein or (ii) any willful
misfeasance, bad faith or negligence by the indemnitor in the performance of its
obligations or duties hereunder or by reason of reckless disregard of such
obligations and duties. Each indemnified party hereunder shall give prompt
written notice to the indemnitor of matters which may give rise to liability of
such indemnitor hereunder; provided, however, that failure to give such notice
shall not relieve the indemnitor of any liability except to the extent of actual
prejudice. This Section 3.06 shall survive the termination of this Agreement and
the termination or resignation of the Master Servicer or the Sub-Servicer.
Notwithstanding the foregoing, the Sub-Servicer shall not have any direct rights
of indemnification that may be satisfied out of assets of the Trust Fund.
Section 3.07 Subcontractors and Sub-servicers.
Without prior written notice to or the prior written consent of the Master
Servicer, the Sub-Servicer shall be permitted to employ, at its own expense,
subcontractors and sub-servicers to perform selected services (such as the
engagement of tax monitoring services, property inspections, etc.) in connection
with Sub-Servicer's performance of the Servicing for the Mortgage Loans;
provided, however, that (1) the Sub-Servicer shall remain fully liable at all
times for the timely performance of all Services and for all other obligations
hereunder (2) the terms of such an arrangement shall not be binding upon the
Master Servicer or any successor primary servicer or Sub-Servicer of the
Mortgage Loans; (3) no such arrangement shall obligate the Master Servicer to
communicate or deal with any Person under this Agreement other than the
Sub-Servicer; (4) 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; and (5) such arrangements are
consistent with and meet all of the requirements of Section 3.23 of the Pooling
and Servicing Agreement, including, without limitation, that such agreement
shall (A) solely with respect to sub-servicers (and not subcontractors), require
the sub-servicer thereunder to perform all applicable requirements of Article XI
of the Pooling and Servicing Agreement, (B) be terminable by the Master Servicer
without cause and without a termination fee if the Sub-Servicer is no longer
acting in such capacity hereunder, (C) provide that the Master Servicer may have
access to such sub-servicer or subcontractor as provided in Section 3.16 of the
Pooling and Servicing Agreement and (D) solely with respect to sub-servicers
that are Servicing Function Participants, provide that the Master Servicer is a
third party beneficiary thereunder, and the Sub-Servicer shall provide the
Master Servicer with a copy of such agreement.
ARTICLE IV
DEFAULT
Section 4.01 Events of Default.
In case one or more of the following events (each an "Event of Default")
by the Sub-Servicer shall occur and be continuing, that is to say:
(a) any failure by the Sub-Servicer to deposit into the Sub-Servicer
Custodial Account, any Sub-Servicer Loan Combination Custodial Account, any
Servicing Account, any REO Account or any Reserve Account, or to deposit into,
or to remit to the Master Servicer for deposit into, the Pool Custodial Account,
on a timely basis, any amount required to be so deposited or remitted under this
Agreement which failure continues unremedied for one (1) Business Day or any
failure by the Sub-Servicer to make, on a timely basis, the required payments to
the applicable Companion Loan Noteholder on or before the Master Servicer
Remittance Date and in accordance with the applicable provisions of the related
Co-Lender Agreement, which failure continues unremedied until 11:00 a.m. (New
York City time) on the first Business Day after such remittance date; or
(b) any failure on the part of the Sub-Servicer to observe or
perform its obligations and duties in strict accordance with Section 3.07 of the
Pooling and Servicing Agreement as incorporated herein pursuant to Sections
3.01(c)(11), (12) and (13) of this Agreement; or
(c) any failure on the part of the Sub-Servicer to (a) timely
provide to the Master Servicer the certification called for on Exhibit E
attached hereto as required by Section 3.01(c)(29) of this Agreement, or (b)
timely provide to the Master Servicer the Collection Report which failure
continues unremedied for one (1) Business Day; or
(d) any failure on the part of the Sub-Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Sub-Servicer contained in this Agreement which 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; or
(e) any breach on the part of the Sub-Servicer of any representation
or warranty contained in Section 3.24 of the Pooling and Servicing Agreement
which materially and adversely affects the interests of the Master Servicer or
any Class of Certificateholders and which continues unremedied for a period of
thirty (30) days (in the case of payment of insurance premiums, fifteen (15)
days or the date on which any required insurance coverage terminates, if such
premiums are not paid, whichever date is earlier) after the date on which notice
of such breach, requiring the same to be remedied, shall have been given to the
Sub-Servicer by the Master Servicer, provided, however, that the Sub-Servicer
shall have an additional thirty (30) days to remedy such breach if the
Sub-Servicer is diligently pursuing the remedy of such breach and provides an
Officer's Certificate to such effect; or
(f) the Sub-Servicer shall fail to timely deliver to the Master
Servicer any Officer's Certificate as required by Section 3.01(c)(38) of this
Agreement, any annual accountants' report as required by Section 3.01(c)(39) of
this Agreement, or in any way fail to comply with Section 3.01(c)(31) through
Section 3.01(c)(37) of this Agreement which failure continues unremedied for a
period of thirty (30) 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 that such notice and cure period
with respect to this Section 4.01(f) shall only apply with respect to any year
that a report on Form 10-K is not required to be filed by the Trust Fund; in any
year that a report on Form 10-K is required to be filed by the Trust Fund, there
will be no notice and cure period with respect to this Section 4.01(f)); or
(g) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Sub-Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or
(h) the Sub-Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Sub-Servicer or of or
relating to all or substantially all of its property; or
(i) 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 limited liability company action in furtherance of the
foregoing; or
(j) the Sub-Servicer shall cease to be an approved servicer of
multifamily mortgage loans for at least one of FHLMC, FNMA or the Department of
Housing and Urban Development (HUD); or
(k) the Sub-Servicer shall assign or transfer or attempt to assign
or transfer all or part of its rights and obligations hereunder except as
permitted by this Agreement; or
(l) the net worth of the Sub-Servicer, determined in accordance with
generally accepted accounting principles shall decline to less than $5,000,000;
or
(m) S&P or Fitch has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (ii) placed one or
more Classes of Certificates on "watch status" in contemplation of rating
downgrade or withdrawal and, in the case of either of clauses (i) or (ii),
citing servicing concerns with the Sub-Servicer as the sole or material factor
in such rating action;
(n) the Sub-Servicer shall be a Prohibited Party; or
(o) the Sub-Servicer shall fail to maintain at least one of the
Rating Requirements, and such failure continues for sixty (60) days following
the date such failure occurs;
then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Master Servicer may terminate, by notice in
writing to the Sub-Servicer, all of the rights and obligations of the
Sub-Servicer as Sub-Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof. From and after the receipt by the Sub-Servicer
of such written notice, all authority and power of the Sub-Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass
to and be vested in the Master Servicer pursuant to and under this Section, and,
without limitation, the Master Servicer is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Sub-Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Sub-Servicer agrees that if it is terminated pursuant to this
Section, it shall promptly (and in any event no later than five (5) Business
Days subsequent to its receipt of the notice of termination) provide the Master
Servicer with all documents and records (including, without limitation, those in
electronic form) requested by it to enable it to assume the Sub-Servicer's
functions hereunder, and shall cooperate with the Master Servicer in effecting
the termination of the Sub-Servicer's responsibilities and rights hereunder and
the assumption by a successor of the Sub-Servicer's obligations hereunder,
including, without limitation, the transfer within one (1) Business Day to the
Master Servicer for administration by it of all cash amounts which shall at the
time be or should have been credited by the Sub-Servicer to the Sub-Servicer
Custodial Account, the Sub-Servicer Loan Combination Custodial Account, the
Custodial Account, any Servicing Account, any REO Account and any Reserve
Account, or thereafter be received with respect to the Mortgage Loans or any REO
Property (provided, however, that the Sub-Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, and it and its directors, officers, employees
and agents shall continue to be entitled to the benefits of Section 3.03 of this
Agreement notwithstanding any such termination).
Notwithstanding anything to the contrary in the foregoing paragraph or in
this Agreement, to the extent that any Event of Default affects only certain
Mortgage Loans serviced by the Sub-Servicer under this Agreement which default
the Sub-Servicer cures prior to three days before the day on which such default
would become an Event of Default by the Master Servicer under the Pooling and
Servicing Agreement, then the Master Servicer may terminate the rights and
obligations of the Sub-Servicer only with respect to such Mortgage Loans
affected.
In addition to any other rights and remedies available to the Master
Servicer hereunder or at law or equity, including, without limitation, the right
to a recovery of damages, the Master Servicer may impose, and if so imposed, the
Sub-Servicer shall pay, the penalties described in this paragraph for (a) any
failure by the Sub-Servicer to deposit into any account required hereby, or to
deposit into, or to remit to the Master Servicer for deposit into, the Custodial
Account or any Sub-Servicer Loan Combination Custodial Account, on a timely
basis, any amount required to be so deposited or remitted under this Agreement,
or (b) any failure by the Sub-Servicer to timely provide to the Master Servicer
any report required by this Agreement to be provided to the Master Servicer
(each such failure referred to herein as a "Sub-Servicer Delinquency"). The
Master Servicer may not impose any penalty for the first Sub-Servicer
Delinquency to occur hereunder ("Initial Sub-Servicer Delinquency"), but may
impose on the Sub-Servicer a penalty of $300.00 for any other Sub-Servicer
Delinquency occurring within two years following an Initial Sub-Servicer
Delinquency; provided, however, that if no Sub-Servicer Delinquency occurs
during any two (2) year period, the first Sub-Servicer Delinquency thereafter
shall be deemed to be an "Initial Sub-Servicer Delinquency". The penalties
provided for in this paragraph are not intended to constitute liquidated
damages. The rights and remedies of the Master Servicer under this Agreement are
cumulative with, and not exclusive of, any other rights or remedies which it
would otherwise have.
Section 4.02 Waiver of Defaults.
The Master Servicer may waive any default by the Sub-Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 4.03 Other Remedies of Master Servicer.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Master Servicer, in addition to the
rights specified in Section 4.01 of this Agreement, shall have the right, in its
own name, to take all actions now or hereafter existing at law, in equity or by
statute to enforce its rights and remedies (including the institution and
prosecution of all judicial, administrative and other proceedings and the filing
of proofs of claim and debt in connection therewith). Except as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Event of Default.
ARTICLE V
TERMINATION
Section 5.01 Termination.
Except as otherwise specifically set forth herein, the rights, obligations
and responsibilities of the Sub-Servicer shall terminate (without payment of any
penalty or termination fee): (i) upon the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan and
the disposition of all REO Property and the remittance of all funds due
hereunder; (ii) by mutual consent of the Sub-Servicer and the Master Servicer in
writing; (iii) pursuant to Section 5.02 of this Agreement; (iv) at the option of
any purchaser of one or more Mortgage Loans pursuant to the Pooling and
Servicing Agreement, upon such purchase and only with respect to such purchased
Mortgage Loan or Mortgage Loans; or (v) upon termination of the Pooling and
Servicing Agreement. Any successor to the Sub-Servicer shall make reasonable
arrangements as it may deem appropriate to reimburse the Sub-Servicer for
amounts the Sub-Servicer actually expended as Sub-Servicer pursuant to this
Agreement which the successor is entitled to retain and which otherwise would be
recovered by the Sub-Servicer pursuant to this Agreement but for the appointment
of such successor.
Section 5.02 Termination With Cause.
The Master Servicer may, at its sole option, terminate any rights the
Sub-Servicer may have hereunder with respect to any or all of the Mortgage Loans
as provided in Section 4.01 of this Agreement upon the occurrence of an Event of
Default.
Any notice of termination shall be in writing and delivered to the
Sub-Servicer as provided in Section 6.05 of this Agreement.
Section 5.03 Termination of Duties with Respect to Specially Serviced
Mortgage Loans.
At such time as any Mortgage Loan becomes a Specially Serviced Mortgage
Loan, the obligations and duties of the Sub-Servicer set forth herein with
respect to such Specially Serviced Mortgage Loan that are required to be
performed by the Special Servicer under the Pooling and Servicing Agreement
shall cease; provided, however, that the Sub-Servicer shall continue to be
entitled to the Sub-Servicing Fee. The Sub-Servicer shall continue to perform
all of its duties hereunder with respect to the Specially Serviced Mortgage
Loans that are not required to be performed by the Special Servicer pursuant to
the Pooling and Servicing Agreement. If a Specially Serviced Mortgage Loan
becomes a Corrected Mortgage Loan, the Sub-Servicer shall commence servicing
such Corrected Mortgage Loan pursuant to the terms of this Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Successor to the Sub-Servicer.
Prior to termination of the Sub-Servicer's responsibilities and duties
under this Agreement pursuant to and in accordance with Section 3.04, 4.01, 5.01
or 5.02 of this Agreement, the Master Servicer shall (i) succeed to and assume
all of the Sub-Servicer's responsibilities, rights, duties and obligations under
this Agreement, or (ii) appoint a successor which satisfies the criteria for a
successor sub-servicer in Section 3.02 of this Agreement and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities of
the Sub-Servicer under this Agreement accruing following the termination of the
Sub-Servicer's responsibilities, duties and liabilities under this Agreement.
Section 6.02 Financial Statements.
The Sub-Servicer shall, upon the request of the Master Servicer, make
available its financial statements and other records relevant to the performance
of the Sub-Servicer's obligations hereunder.
Section 6.03 Closing.
The closing for the commencement of the Sub-Servicer to perform the
servicing responsibilities under this Agreement with respect to the Mortgage
Loans shall take place on the Closing Date. At the Master Servicer's option, the
closing shall be either: by telephone, confirmed by letter or wire as the
parties shall agree; or conducted in person, at such place as the parties shall
agree.
The closing shall be subject to the execution and delivery of the Pooling
and Servicing Agreement by the parties thereto.
Section 6.04 Closing Documents.
The Closing Documents shall consist of all of the following documents:
(a) to be provided by the Sub-Servicer:
(1) this Agreement executed by the Sub-Servicer;
(2) an Officer's Certificate of the Sub-Servicer, dated the
Closing Date and in the form of Exhibit B hereto, including all attachments
thereto, or a legal opinion of the Sub-Servicer, dated the Closing Date and
containing substantially similar provisions as those set forth in the form
attached hereto as Exhibit B; and
(3) the account certifications in the form of Exhibit F hereto
required by Sections 3.01(c)(3), (5), (6) and (8) of this Agreement, fully
completed; and
(b) to be provided by the Master Servicer:
(1) this Agreement executed by the Master Servicer; and
(2) the Mortgage Loan Schedule, with one copy to be attached
to each counterpart of this Agreement as Exhibit A hereto; and
(3) the Pooling and Servicing Agreement substantially in the
form of Exhibit C hereto.
Section 6.05 Notices.
All demands, notices, consents and communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered to the
following addresses:
(i) if to the Master Servicer:
Wachovia Bank, National Association
Commercial Real Estate Services
0000 Xxxxxxxx Xxxxx XXX-0-XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (for overnight mail
only)
Fax No. (000) 000-0000
Reference: COBALT CMBS Commercial Mortgage Trust
2007-C3,
Commercial Mortgage Pass-Through Certificates
Series 2007-C3
with a copy to:
Xxxx Xxxxxxxx, Esq.
c/o Wachovia Corporation
000 X. Xxxxxxx Xx., XX-00
Xxxxxxxxx, XX 00000-0000
Reference: COBALT CMBS Commercial Mortgage Trust
2007-C3,
Commercial Mortgage Pass-Through
Certificates
Series 2007-C3
(ii) if to the Sub-Servicer:
CWCapital LLC
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Fax No. (000) 000-0000
with a copy to:
CWCapital LLC
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Fax No. (000) 000-0000
or such other address as may hereafter be furnished to the other party
by like notice.
Section 6.06 Severability Clause.
Any part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 6.07 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 6.08 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York, except
to the extent preempted by Federal Law.
Section 6.09 Protection of Confidential Information.
The Sub-Servicer shall keep confidential and shall not divulge to any
party other than the Master Servicer, the Depositor, the Special Servicer, the
Rating Agencies or the Trustee, without the Master Servicer's prior written
consent, any information pertaining to the Mortgage Loans or any borrower
thereunder, except to the extent that it is appropriate for the Sub-Servicer to
do so in working with legal counsel, auditors, taxing authorities or other
governmental agencies or in accordance with this Agreement. Notwithstanding the
foregoing, the Sub-Servicer may include information on the Mortgage Loans on an
aggregate basis in providing to other parties information on its entire
servicing portfolio.
Section 6.10 Intention of the Parties.
It is the intention of the parties that the Master Servicer is conveying,
and the Sub-Servicer is receiving, only a contract for servicing the Mortgage
Loans. Accordingly, the parties hereby acknowledge that the Trustee remains the
sole and absolute beneficial owner of the Mortgage Loans and all rights related
thereto.
Section 6.11 Third Party Beneficiary.
The Trustee, for the benefit of the Certificateholders, and the Depositor
shall be a third party beneficiary under this Agreement, provided that, except
to the extent the Trustee or its designee assumes the obligations of the Master
Servicer hereunder as contemplated by Section 6.12 of this Agreement, none of
the Depositor, the Trustee, the Trust Fund, any successor Master Servicer, or
any Certificateholder shall have any duties under this Agreement or any
liabilities arising herefrom.
Section 6.12 Successors and Assigns; Assignment of Agreement.
This Agreement shall bind and inure to the benefit of and be enforceable
by the Sub-Servicer and the Master Servicer and the respective successors and
assigns of the Sub-Servicer and the Master Servicer. This Agreement shall not be
assigned, pledged or hypothecated by the Sub-Servicer to a third party except as
otherwise specifically provided for herein. If the Master Servicer shall for any
reason no longer act in such capacity under the Pooling and Servicing Agreement,
the Trustee or its designee may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of the
Master Servicer under this Agreement.
Section 6.13 Waivers.
No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
Section 6.14 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 6.15 General Interpretive Principles.
The article and section headings are for convenience of a reference only,
and shall not limit or otherwise affect the meaning hereof.
Section 6.16 Complete Agreement.
This Agreement embodies the complete agreement between the parties
regarding the subject matter hereof and may not be varied or terminated except
by a written agreement conforming to the provisions of Section 6.18 of this
Agreement. All prior negotiations or representations of the parties are merged
into this Agreement and shall have no force or effect unless expressly stated
herein.
Section 6.17 Further Agreement.
The Sub-Servicer and the Master Servicer each agree to execute and deliver
to the other such reasonable and appropriate additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 6.18 Amendments.
This Agreement may only be amended with the consent of the Sub-Servicer
and the Master Servicer. No amendment to the Pooling and Servicing Agreement
that purports to change the rights or obligations of the Sub-Servicer hereunder
shall be effective against the Sub-Servicer without the express written consent
of the Sub-Servicer. The Master Servicer shall deliver a copy of any amendment
to the Pooling and Servicing Agreement to the Sub-Servicer within a reasonable
period of time after the execution of such amendment.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Sub-Servicer and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
CWCAPITAL LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Assistant General Counsel
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Mortgage Loan
Number Property Name
7 Tradewinds Hospitality Portfolio
7.01 Tradewinds Island Grand Resort
7.02 Tradewinds Breckenridge Resort
7.03 Tradewinds Sandpiper Resort
17 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx
18 Vinings Corner Apartments
20 Mission Gate
25 Preferred Freezer - Philadelphia, PA
00 Xxx Xxxxx xx Xxxxx Xxxx
31 One Deerwood Center
35 Xxxxxxx Technologies Buildings Portfolio
35.01 000 Xxxxxxxx Xxxxxxxxx
35.02 000 Xxxxx Xxxxx Xxxxx
39 0000 Xxxxxxxxxx Xxxxxx, XX
40 Xxxxxxxx Apartments
42 Xxxxxxxx Reserve Apartments
43 Greens Crossroads
44 321 Xxxxxxxxx Center Drive
45 Shadowridge Apartments
46 Illinois Student Housing Portfolio
46.01 000 Xxxx Xxxx Xxxxxx
46.02 000 Xxxx Xxxxxxx Xxxxxx
46.03 000 Xxxxxx Xxxxxx
46.04 000 Xxxxxx Xxxxxx
46.05 000 Xxxx Xxxx Xxxxxx
49 Dorado Heights Apartments
00 Xxxxxx Xxxx Xxxxxxxx
00 XXX Xxxxxxxx
00 Xxxxxx'x Mill
00 Xxxx Xxxx Xxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Shopping Center
00 Xxxxxxxxx Xxxx
00 Xxxxxxx Xxxxxx Xxxxx
00 Xxxxxxxxxxxx Xxxxxxx & Xxxxxxxxxxxx Xxxxx
00 Landmark Apartments
74 Sweet Ovations Plant
77 Xxxxxxx Town Center
78 Guam Medical Plaza
80 Air & Space Self Storage
00 Xxxxxxxx Xxxxxx Station
00 Xxx Xxxxx Xxxxxxxxxx - Xx Xxxx, XX
86 Tanglewood Apartments
87 0000 00xx Xxxxxx XX
00 Xxxxxxxxx - Xxxxxxxx, XX
90 The Hallmark Building
91 Rite Aid - Bronx, NY
00 Xxxxxx Xxxxx
00 Xxxxx Xxxxx Townhomes
00 Xxx Xxxxxxxxxx Xxxxxxxxxx
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX
00 Xxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxxx - Xxxxxxx, XX
101 0000 Xxxxxxxxx Xxxxxx, XX
000 Xxxx Xxxxx Xxxxx - Xxxxxxxx, XX
104 Highland Oaks Apartments
105 Eagle Mill Lofts
107 Rite Aid - West Goshen, PA
108 Harley Retail Shops
109 The Greenway/Xxxxxxx'x Landing Apartments
110 Foundations Bank & Executive Center
000 Xxxxx Xxxxxx Retail
000 Xxxxxxxxx Xxxxx I & II
113 Prairie Lakes Shopping Center
000 Xxxxxxxxx Xxxxxxx & Villas
000 00xx Xxxxxx Plaza
116 106 South Xxxxxxx and 000 Xxxx Xxxxxxxxx
000 Xxxxx Xxxxx
000 XXX Xxxxx
000 00 Xxxxxxxxx Xxxxxxxx
120 The Xxxxxxxx Campus Inn
122 Maplewood Marketplace
123 Doral Office Building
EXHIBIT B
SUB-SERVICER'S OFFICER'S CERTIFICATE
I, ______________________________, hereby certify that I am the duly
elected [Senior Vice President] of CWCapital LLC, a limited liability company
organized under the laws of the Commonwealth of Massachusetts (the
"Sub-Servicer") and further as follows:
(i) Attached hereto as Exhibit 1 is a true, correct and complete
copy of the certificate of organization of the Sub-Servicer which is in full
force and effect on the date hereof and which has been in effect without
amendment, waiver, rescission or modification since
_______________________________.
(ii) Attached hereto as Exhibit 2 is a true, correct and complete
copy of the operating agreement of the Sub-Servicer which are in effect on the
date hereof and which have been in effect without amendment, waiver, rescission
or modification since ____________.
(iii) Attached hereto as Exhibit 3 is an original certificate of
good standing of the Sub-Servicer, issued within ten days of the date hereof,
and no event has occurred since the date thereof which would impair such
standing.
(iv) Attached hereto as Exhibit 4 is a true, correct and complete
copy of the resolutions of the [Board of Managers] of the Sub-Servicer
authorizing the Sub-Servicer to execute and deliver the Sub-Servicing Agreement,
dated as of [_____], 2007 (the "Sub-Servicing Agreement"), by and between the
Sub-Servicer and Wachovia Bank, National Association and such resolutions are in
effect on the date hereof and have been in effect without amendment, waiver,
rescission or modification since _______________.
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Sub-Servicer of or compliance by the Sub-Servicer with the
Sub-Servicing Agreement or the consummation of the transactions contemplated by
the Sub-Servicing Agreement except as have previously been obtained, and no bulk
sale law applies to such transactions.
(vi) The execution and delivery of the Sub-Servicing Agreement by
the Sub-Servicer and the Sub-Servicer's performance and compliance with the
terms of the Sub-Servicing Agreement will not (A) violate the Sub-Servicer's
operating agreement, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a material default (or
an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in a breach of, any material contract,
agreement or other instrument to which the Sub-Servicer is a party or by which
the Sub-Servicer is bound.
(vii) No litigation is pending or, to the Sub-Servicer's knowledge,
threatened against the Sub-Servicer that would, in the Sub-Servicer's good faith
and reasonable judgment, prohibit its entering into the Sub-Servicing Agreement
or materially and adversely affect the performance by the Sub-Servicer of its
obligations under the Sub-Servicing Agreement.
(viii) Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Sub-Servicer, signed the Sub-Servicing
Agreement and any other document delivered prior hereto or on the date hereof in
connection with the Sub-Servicing Agreement, was, at the respective times of
such signing and delivery, and is now, a duly elected or appointed, qualified
and acting officer or representative of the Sub-Servicer, who holds the office
set forth opposite his or her name on Exhibit 5, and the signatures of such
persons appearing on such documents are their genuine signatures.
(ix) The Sub-Servicer is duly authorized to engage in the
transactions described and contemplated in the Sub-Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of
the Sub-Servicer.
Dated: By__________________________________
Name:_______________________________
[Seal] Title: [Senior Vice President]
I, _______________________, an [Assistant] Secretary of [Sub-Servicer],
hereby certify that ___________________________ is the duly elected, qualified
and acting [Vice] President of the Sub-Servicer and that the signature appearing
above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: By__________________________________
Name:_______________________________
[Seal] Title: Assistant Secretary
EXHIBIT 5
to
Sub-Servicer's Officer's Certificate
Name Title Signature
__________________________________
__________________________________
__________________________________
__________________________________
EXHIBIT C
POOLING AND SERVICING AGREEMENT
See Exhibit 4.1
EXHIBIT D
[Reserved]
EXHIBIT E
QUARTERLY SERVICING CERTIFICATION
Sub-Servicer: ________________
RE: Series________________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and the above referenced Sub-Servicer, we certify with respect to
each mortgage loan serviced by us for Wachovia Bank, National Association that
as of the quarter ending ____________________ except as otherwise noted below:
o All taxes, assessments and other governmental charges levied against the
mortgaged premises, ground rents payable with respect to the mortgaged
premises, if any, which would be delinquent if not paid, have been paid.
o All required insurance policies are in full force and effect on the
mortgaged premises in the form and amount and with the coverage required
by the loan documents.
o On all required insurance policies, the loss payee is in the name
of Wachovia Bank, National Association, as Master Servicer on
behalf of Xxxxx Fargo Bank, N.A. as Trustee for the benefit of
the Certificateholders of COBALT CMBS Commercial Mortgage Trust
2007-C3, Commercial Mortgage Pass-Through Certificates Series
2007-C3, x/x XXXxxxxxx XXX, Xxx Xxxxxxx Xxxxx Xxxxx, 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, as Sub-Servicer, its
successors and assigns "ATIMA".
o All UCC Financing Statements have been renewed prior to expiration.
o All reserves are maintained and disbursed in accordance with the loan
documents and no expired reserves exist.
o All letters of credit are transferred to the Trust as beneficiary and are
properly renewed.
o Lockboxes are being serviced in accordance with loan documents.
EXCEPTIONS:_____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
____________________________________ _________________________________________
Servicing Officer Date
EXHIBIT F
FORM OF ACCOUNT CERTIFICATION
Securitization:_________________________________________________________________
Sub-Servicer:___________________________________________________________________
_________ New Account ________ Change of Account
Information
Indicate purpose of account (check all that apply):
_________ Principal & Interest ________ Deposit Clearing
_________ Taxes & Insurance ________ Disbursement Clearing
_________ Reserves (non-interest ________ Suspense
bearing)
_________ Reserves (interest
bearing)
Account Number:_________________________________________________________________
Account Name:___________________________________________________________________
Depository Institution (and Branch):
Name:_____________________________________________________________________
Street:___________________________________________________________________
City, State, Zip:_________________________________________________________
Rating Agency:____________________________ Rating:________________________
Please note that the name of the account must follow the guideline
specifications detailed in the applicable agreement.
Prepared by:____________________________________________________________________
Signature:______________________________________________________________________
Title:__________________________________________________________________________
Date:___________________________________________________________________________
Telephone:____________________________ Fax:_____________________________________
EXHIBIT G
FORM OF
COLLECTION REPORT
Series _____
Month of ____________
Master Subservicers Scheduled Scheduled Scheduled Scheduled
Services Loan Due Mtg Net Beginning Schedule Principal Interest Scheduled Curtailed
Loan # # Date Rate Mtg Rate Balance P&I Amount Payment Payment Service Fee Prepayment
-------- ------------ --------- ---- -------- --------- ---------- --------- --------- ----------- ----------
**
-------- ------------ --------- ---- -------- --------- ---------- --------- --------- ----------- ----------
Totals 0.00 0.00 0.00 0.00 0.00 0.00
Master Curtailed Prepayment Other Actual Actual Net Actual Payment
Services Prepayment Interest Principal Principal Interest Service Late Assumption Additional Loan
Loan # Date Excess/Short Adjustment Payment Payment Fees Charges Fees Fees Status
-------- ---------- ------------ ---------- --------- ---------- ------- ------- ---------- ---------- -------
-------- ---------- ------------ ---------- --------- ---------- ------- ------- ---------- ---------- -------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Master Scheduled Actual Loan Bal As Next Total Reserve Bal
Services Distribution Ending of Payment As Of Date of
Loan # Amount Balance Distribution Date Due Prior Month End Maturity
-------- ------------ --------- ------------------ ------- ----------------- --------
-------- ------------ --------- ------------------ ------- ----------------- --------
Totals 0.00 0.00 0.00 0.00
Prepared By
Approved By
Loan Status A - payment not received but still in grace period
B - late payment but less than 1 month delinquent
O - Current
1 - One month delinquent
2 - Two months delinquent
3 - Three months delinquent
4 - Assumed Schedule Payment
5 - Prepaid in Full
6 - Specially Serviced
7 - in foreclosure
9 - REO
10 - DPO
11 - Modification
EXHIBIT H
FORM OF CERTIFICATE OF INSURANCE
Sub-Servicer:______________________
RE: Series ____________________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and [Sub-Servicer], based on [Sub-Servicer's] monitoring of the
insurance in accordance with the Servicing Standard, we certify with respect to
each Mortgage Loan serviced by us for Wachovia Bank, National Association that
all required insurance policies are in full force and effect on the mortgaged
premises in the form and amount and with the coverage required by the
Sub-Servicing Agreement(s).
_____________________________________ _______________________________________
Servicing Officer Date
EXHIBIT I
[RESERVED]
EXHIBIT J
MONTHLY SERVICING ACCOUNTS CERTIFICATION
Sub-Servicer:_________________________
RE: Series ___________________
Pursuant to the Sub-Servicing Agreement(s) between Wachovia Bank, National
Association and the above named Sub-Servicer, I certify with respect to each
transaction serviced by us, as noted above, for Wachovia Bank, National
Association that as of ________________ (Determination Date) all collection
accounts and servicing accounts have been properly reconciled and the
reconciliations have been reviewed and approved by Sub-Servicer's management,
except as otherwise noted below:
EXCEPTIONS:_____________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_____________________________________ _______________________________________
Servicing Officer Date
