Exhibit 99.2
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PRIMARY SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2008
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XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS MASTER SERVICER,
PRINCIPAL GLOBAL INVESTORS, LLC,
AS PRIMARY SERVICER,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
DATED AS OF FEBRUARY 1, 2008
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS MASTER SERVICER,
CENTERLINE SERVICING INC.
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION
AS TRUSTEE AND CUSTODIAN
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2008-TOP29
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ARTICLE I. DEFINITIONS............................................................... 1
ARTICLE II. PRIMARY SERVICING........................................................ 11
SECTION 2.1 PRIMARY SERVICING................................................. 11
SECTION 2.2 STANDARD OF CARE.................................................. 20
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER........... 20
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES................... 21
ARTICLE III. DOCUMENTS AND OTHER MATTERS............................................. 21
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS............................ 21
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION............. 21
ARTICLE IV. MASTER SERVICER ASSISTANCE............................................... 22
SECTION 4.1 MASTER SERVICER ASSISTANCE........................................ 22
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS................................. 22
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS..................................... 23
SECTION 5.1 NOTICE OF LITIGATION.............................................. 23
SECTION 5.2 NO PERSONAL SOLICITATION.......................................... 23
SECTION 5.3 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY........... 23
SECTION 5.4 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED INFORMATION... 24
SECTION 5.5 NO ADVANCING...................................................... 24
SECTION 5.6 REMIC COMPLIANCE.................................................. 24
SECTION 5.7 INSPECTION RIGHTS................................................. 25
SECTION 5.8 AUTHORIZED OFFICER................................................ 25
SECTION 5.9 ADDITIONAL REPORTS................................................ 25
SECTION 5.10 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES....................... 25
SECTION 5.11 CONSENTS.......................................................... 26
SECTION 5.12 QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION......... 26
SECTION 5.13 EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS................. 26
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION OBLIGATIONS...... 31
SECTION 6.1 PRIMARY SERVICER DEFAULT.......................................... 31
SECTION 6.2 TERMINATION....................................................... 34
SECTION 6.3 POST-TERMINATION OBLIGATIONS...................................... 34
SECTION 6.4 ADDITIONAL TERMINATION............................................ 35
ARTICLE VII. SUBCONTRACTORS.......................................................... 36
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER.............. 36
ARTICLE IX. INDEMNIFICATION.......................................................... 37
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY...................................... 37
SECTION 9.2 MASTER SERVICER'S INDEMNITY....................................... 37
ARTICLE X. MISCELLANEOUS............................................................. 38
SECTION 10.1 SEVERABILITY...................................................... 38
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS........................................ 38
SECTION 10.3 HEADINGS.......................................................... 38
SECTION 10.4 CONSTRUCTION...................................................... 38
SECTION 10.5 ASSIGNMENT........................................................ 38
SECTION 10.6 PRIOR UNDERSTANDINGS.............................................. 40
SECTION 10.7 INTEGRATED AGREEMENT.............................................. 40
SECTION 10.8 COUNTERPARTS...................................................... 40
SECTION 10.9 GOVERNING LAWS.................................................... 40
SECTION 10.10 NOTICES........................................................... 40
SECTION 10.11 AMENDMENT......................................................... 41
SECTION 10.12 OTHER............................................................. 41
SECTION 10.13 BENEFITS OF AGREEMENT............................................. 41
LOAN # ________________________...................................................... 5
This PRIMARY SERVICING AGREEMENT, dated and effective as of February
1, 2008, by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the capacity of
primary servicer, the "Primary Servicer") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, acting solely in its capacity as
Master Servicer under the Pooling and Servicing Agreement (as defined below)
(the "Master Servicer").
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
Centerline Servicing Inc., as special servicer, Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent,
and LaSalle Bank National Association, as trustee and custodian, have entered
into a Pooling and Servicing Agreement, dated as of February 1, 2008, relating
to the Commercial Mortgage Pass-Through Certificates, Series 2008-TOP29 (as
amended, from time to time, the "Pooling and Servicing Agreement"), a copy of
which is attached hereto as Exhibit A; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
and provide, on behalf of the Master Servicer, the necessary servicing of such
mortgage loans performed in a manner consistent with the Servicing Standard and
in a manner consistent with this Agreement and the Pooling and Servicing
Agreement from the Closing Date until this Agreement is terminated in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided,
however, that terms whose meanings are ascribed in the Pooling and Servicing
Agreement and by the provisions thereof pertain to one or more mortgage loans
that are the subject of the Pooling and Servicing Agreement shall be construed
for purposes of this Agreement to pertain to the related Mortgage Loan(s) that
are the subject of this Agreement.
"A Note": With respect to any A/B Mortgage Loan, the mortgage note (or
notes) included in the Trust that is senior in right of payment to the related B
Note or any other subordinated note(s) to the extent set forth in the related
Intercreditor Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan,
the related co-lender agreement, by and between the holder of the related
Mortgage Loan and the holder of the related B Note(s), setting forth the
relative rights of such holders, as the same may be further amended from time to
time in accordance with the terms thereof.
"A/B Mortgage Loan": Any mortgage loan serviced under this Agreement
that is divided into a senior mortgage note and a subordinated mortgage note,
which senior mortgage note is included in the Trust. The A/B Mortgage Loan
related to this Agreement is the GE Healthcare Facility A/B Mortgage Loan.
"ABS Issuing Entity": Each trust or entity that has issued
asset-backed securities that directly or indirectly evidence interests in or are
secured by a pledge of one or more mortgage loans serviced hereunder (regardless
of whether such mortgage loan constitutes a "Mortgage Loan" under the other
provisions of this Agreement), it being understood that the TOP29 Trust
constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": With respect to each Mortgage Loan, B Note
or Serviced Companion Mortgage Loan, the related Primary Servicing Fee and the
related Excess Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended
and supplemented from time to time, including all exhibits, schedules and
addenda hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and
annual financial statements and rent rolls collected with respect to the
Mortgaged Properties securing the Mortgage Loans, A/B Mortgage Loans and Loan
Pairs, to be made available, within 30 days following receipt thereof by the
Primary Servicer, to the Master Servicer (and, with respect to an A/B Mortgage
Loan, the holder of the B Note, if required by the applicable A/B Intercreditor
Agreement and, with respect to a Loan Pair, the holder of the Serviced Companion
Mortgage Loan, if required by the applicable Loan Pair Intercreditor Agreement),
the Operating Adviser, and, to any of the following Persons upon written
notification from Master Servicer of a request for such information and the
identity and address of the requesting Person requesting: the Rating Agencies,
the Special Servicer, or the Trustee.
"Applicable Depositor": The Depositor or the depositor with respect to
an ABS Issuing Entity other than the TOP29 Trust.
"B Note": With respect to any A/B Mortgage Loan, any related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
A/B Intercreditor Agreement. The B Note related to this Agreement is the GE
Healthcare Facility B Note.
"Category 1 Consent Aspect": A condition, term or provision of a
Category 1 Request that requires, or specifies a standard of, consent, or
approval of the applicable mortgagee under the Loan Documents, but shall
explicitly exclude any such conditions, terms or provisions enumerated in (a) an
escrow or reserve agreement for disbursements made from an escrow or reserve
account or an extension of time to complete repairs, replacements or
improvements in accordance with the terms and conditions set forth in Exhibit
B-2(c); (b) an assignment and assumption request covered under Section
A.1.(c)(ii) of Exhibit B-2(c) of this Agreement; (c) an additional lien,
monetary encumbrance or mezzanine financing request covered under Section
A.1.(c)(iii) of Exhibit B-2(c) of this Agreement; or (d) a defeasance request
covered under Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
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"Category 1 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 2 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 3 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"CMSA Comparative Financial Status Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
in the form specified in the Pooling and Servicing Agreement.
"CMSA Delinquent Loan Status Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and in the form
specified in the Pooling and Servicing Agreement.
"CMSA Financial File": A report which is one element of the CMSA
Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
"CMSA Historical Loan Modification Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
in the form specified in the Pooling and Servicing Agreement.
"CMSA Investor Reporting Package": The Commercial Mortgage Securities
Association Investor Reporting Package, certain forms of which are specified in
the Pooling and Servicing Agreement and elements of which shall be produced as
provided in Section 2.1(c) and the Task Description.
"CMSA Loan Level Reserve Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and in the form
specified in the Pooling and Servicing Agreement.
"CMSA Loan Periodic Update File": A report which is one element of the
CMSA Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
"CMSA Loan Setup File": A report which is one element of the CMSA
Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
"CMSA NOI Adjustment Worksheet": A report which is one element of the
CMSA Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
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"CMSA Operating Statement Analysis Report": A report which is one
element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements, which is part of the CMSA Investor Reporting Package and in the form
specified in the Pooling and Servicing Agreement.
"CMSA Property File": A report which is one element of the CMSA
Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and in the form
specified in the Pooling and Servicing Agreement.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and in the form
specified in the Pooling and Servicing Agreement, the required contents of which
are described in Section 8.11(h) of the Pooling and Servicing Agreement.
"CMSA Total Loan Report": A report which is one element of the CMSA
Investor Reporting Package and in the form specified in the Pooling and
Servicing Agreement.
"Day One Report": With respect to each Mortgage Loan, A/B Mortgage
Loan and Loan Pair, a statement in the form of Exhibit B-1(f) setting forth the
scheduled payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan, A/B Mortgage Loan or Loan Pair and on account of what type of
payment such amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan or a
Loan Pair, a Category 2 Request shall, for purposes of this Agreement, be deemed
to be a Category 1 Request and shall be processed, as such, by the Primary
Servicer.
"Distribution Date": With respect to the TOP29 Trust, as defined in
the Pooling and Servicing Agreement. With respect to any other ABS Issuing
Entity (as the context requires), the monthly date on which distributions are
required to be made on the related certificates under the related pooling and
servicing agreement.
"Escrow Status Report": A brief statement to be delivered to the
Persons designated in Section 5.1(g) of the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the holder of the B Note, if required by
the applicable A/B Intercreditor Agreement, and with respect to a Loan Pair, the
holder of the Serviced Companion Mortgage Loan, if required by the applicable
Loan Pair Intercreditor Agreement, within twenty (20) days following the first
anniversary of the Closing Date, for each of the Mortgage Loans, A/B Mortgage
Loans and Loan Pairs included on Schedule VII of the Pooling and Servicing
Agreement (and related B Notes and related Serviced Companion Mortgage Loans),
about the status of the work or project based upon the most recent information
provided by the applicable Mortgagor.
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"Excess Servicing Fee": For each calendar month, as to each Mortgage
Loan or Serviced Companion Mortgage Loan, the portion of the related Excess
Servicing Fee Rate applicable to such month (determined in the same manner as
the applicable Mortgage Rate determined for such Mortgage Loan or Serviced
Companion Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of such Mortgage Loan or Serviced Companion Mortgage Loan immediately
before the Due Date occurring in such month, but prorated for the number of days
during the calendar month for such Mortgage Loan or Serviced Companion Mortgage
Loan for which interest actually accrues on such Mortgage Loan or Serviced
Companion Mortgage Loan and only from collections on such Mortgage Loan or
Serviced Companion Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect
to each Mortgage Loan.
"GE Healthcare Facility A/B Mortgage Loan": The GE Healthcare Facility
Mortgage Loan and the GE Healthcare Facility B Note.
"GE Healthcare Facility B Note": With respect to the GE Healthcare
Facility A/B Mortgage Loan, the related subordinated B Note not included in the
Trust, which is subordinated in right of payment to the GE Healthcare Facility
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"GE Healthcare Facility Mortgage": The mortgage securing the GE
Healthcare Facility A/B Mortgage Loan and any other note secured by the related
Mortgaged Property.
"GE Healthcare Facility Mortgage Loan": The Mortgage Loan which is
senior to the GE Healthcare Facility B Note and is secured by the related
Mortgaged Property pursuant to the GE Healthcare Facility Mortgage. The GE
Healthcare Facility Mortgage Loan is a "Mortgage Loan."
"Kimco Portfolio Companion Loan": The loan that is secured by the
Kimco Portfolio Mortgage on a pari passu basis with the Kimco Portfolio Pari
Passu Loan and which is not included in the Trust. The Kimco Portfolio Companion
Loan is not a "Mortgage Loan."
"Kimco Portfolio Mortgage": The mortgage securing the Kimco Portfolio
Pari Passu Loan and the Kimco Portfolio Companion Loan.
"Kimco Portfolio Pari Passu Loan": The Mortgage Loan which is secured
on a pari passu basis with the Kimco Portfolio Companion Loan pursuant to the
Kimco Portfolio Mortgage. The Kimco Portfolio Pari Passu Loan is a "Mortgage
Loan."
"Lease": A lease, proposed lease, or amendment, modification,
restatement, extension or termination of a lease, in each case of space and any
other ancillary and associated rights in a building or on the real estate
constituting all or a portion of a Mortgaged Property.
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"Loan Documents": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Loan Pair": A Serviced Pari Passu Mortgage Loan and the related
Serviced Companion Mortgage Loan, collectively.
"Loan Pair Intercreditor Agreement": With respect to a Loan Pair, the
related intercreditor agreement by and between the holders of the related
Serviced Pari Passu Mortgage Loan and the related Serviced Companion Mortgage
Loan, setting forth the relative rights of such holders, as the same may be
further amended from time to time in accordance with the terms thereof.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Servicing Proposal) to the PCFII Servicing Rights Purchase Agreement
to the effect that, except as disclosed to the Master Servicer, no Mortgage Loan
under such agreement has terms under which it may be paid off, in whole or in
part, on a date other than a due date or maturity date (including during open
periods) without payment of a full month of interest.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents
contained in the Mortgage File for the Mortgage Loans, any A/B Mortgage Loans
and any Loan Pairs.
"Materiality Determination": With respect to a Category 1 Request, the
determination by Primary Servicer, exercised in good faith using the "Servicing
Standard" set forth in the Pooling and Servicing Agreement, whether a Category 1
Consent Aspect is material and should be referred to the Special Servicer for
consent in accordance with this Agreement and the Pooling and Servicing
Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the schedule attached to
this Agreement as Schedule I, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to Section
2.1 or Section 2.3 of the Pooling and Servicing Agreement, and Mortgage Loan
shall also include any Defeasance Loan, but with respect to (i) any A/B Mortgage
Loan, shall include the A Note (but shall not include the related B Note) and
(ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage Loan (but
shall not include the related Serviced Companion Mortgage Loan).
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Servicing Officer pursuant to this Agreement.
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"Payment and Collection Description": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs, as
more particularly described in Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be
submitted by Primary Servicer to the Master Servicer with respect to reporting
about collection and remittance of payments, delinquencies, status of real
estate taxes, status of insurance and status of UCC financing statements for the
Mortgage Loans and with respect to an A/B Mortgage Loan, to the holder of the B
Note, if required by the applicable A/B Intercreditor Agreement, and with
respect to a Loan Pair, to the holder of the Serviced Companion Mortgage Loan,
if required by the applicable Loan Pair Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"PCFII Servicing Rights Purchase Agreement": The servicing rights
purchase agreement dated February 29, 2008 between Principal Commercial Funding
II, LLC, as Seller and the Master Servicer, as Purchaser.
"POA Notice": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans, A/B Mortgage Loans and Loan Pairs that have
not become Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one
on which a Servicing Transfer Event has occurred, which obligations are more
particularly described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Global Investors, LLC, as Primary Servicer
for Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2008-TOP29."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As defined
in Section 5.3(a) hereof.
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"Primary Servicer Fidelity Bond": As defined in Section 5.3(a) hereof.
"Primary Servicer Form 8-K Information Report": As defined in Section
5.13(c)(i) hereof.
"Primary Servicer Form 10-D Information Report": As defined in Section
5.13(c)(ii) hereof.
"Primary Servicer Form 10-K Information Report": As defined in Section
5.13(c)(iii) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans, A/B Mortgage Loans and
Loan Pairs and (b) all other servicing documents and records in possession of
Primary Servicer that relate to or are used for the servicing of the Mortgage
Loans, A/B Mortgage Loans and Loan Pairs and that are not required to be part of
the applicable Mortgage File.
"Primary Servicing Fee": For each calendar month, as to each Mortgage
Loan, each B Note and each Serviced Companion Mortgage Loan, the portion of the
Primary Servicing Fee Rate applicable to such month (determined in the same
manner as the applicable Mortgage Rate is determined for such Mortgage Loan, B
Note or Serviced Companion Mortgage Loan for such month) multiplied by the
Scheduled Principal Balance of such Mortgage Loan (or the Principal Balance in
the case of each B Note and each Serviced Companion Mortgage Loan) immediately
before the Due Date occurring in such month, but prorated for the number of days
during the calendar month for such Mortgage Loan, B Note or Serviced Companion
Mortgage Loan for which interest actually accrues on such Mortgage Loan, B Note
or Serviced Companion Mortgage Loan and only from collections on such Mortgage
Loan, B Note or Serviced Companion Mortgage Loan; provided, however, that no
Primary Servicing Fee shall be payable on any given B Note unless and until the
Primary Servicer obtains from that B Note's holder a written consent to the
payment of a primary servicing fee from amounts otherwise payable to such holder
and the Primary Servicer delivers notice and a copy of such consent to the
Master Servicer. As to any Serviced Companion Mortgage Loan, the Primary
Servicer shall be entitled to retain the Master Servicing Fee that is otherwise
payable to the Master Servicer (and, in turn, otherwise payable by the Master
Servicer to the Primary Servicer) pursuant to the Pooling and Servicing
Agreement, and such retained fee shall constitute the "Primary Servicing Fee"
under this Agreement with respect to such Serviced Companion Mortgage Loan..
"Primary Servicing Fee Rate": A rate (including the rates at which any
sub-servicing fees accrue) with respect to each Mortgage Loan, each B Note and
each Serviced Companion Mortgage Loan, as applicable, equal to the following:
(i) in the case of each Mortgage Loan, the rate per annum set forth opposite
such Mortgage Loan on Schedule I; (ii) in the case of each B Note, zero percent
(0.0% per annum) or, if the Primary Servicer obtains from the holder of such B
Note a written consent thereto and delivers notice and a copy of such consent to
the Master Servicer, the rate per annum at which such holder agrees to the
accrual of a Primary Servicing Fee on such B Note from amounts otherwise payable
to such holder on such B Note; and (iii) in the case of each Serviced Companion
Mortgage Loan, the rate per
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annum at which the applicable "master servicing fee rate" for such Serviced
Companion Mortgage Loan accrues under the Pooling and Servicing Agreement..
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans, A/B Mortgage Loans and Loan Pairs whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Master Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2
hereof.
"Property Inspection Description": The description of the obligations
of the Primary Servicer with respect to inspection of the Mortgaged Properties
for each of the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs as
more particularly described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.12
hereof.
"Regulations": The rules, regulations and policy statements of the SEC
as in effect from time to time.
"Requirements List": As defined in the Post Closing Matters
Description in Exhibit B-2.
"SEC": The Securities and Exchange Commission.
"Serviced Companion Mortgage Loan": A mortgage loan that is serviced
under this Agreement, is not a "Mortgage Loan" included in the Trust, but is
paid on a pari passu basis with a Mortgage Loan included in the Trust. The
Serviced Companion Mortgage Loan serviced under this Agreement is the Kimco
Portfolio Companion Loan.
"Serviced Pari Passu Mortgage Loan": A Mortgage Loan that is included
in the Trust and paid on a pari passu basis with a Serviced Companion Mortgage
Loan. The Serviced Pari Passu Mortgage Loan serviced under this Agreement is the
Kimco Portfolio Pari Passu Loan.
"Services": Those activities to be provided by the Primary Servicer
for the Servicing of the Mortgage Loans, the A/B Mortgage Loans and Loan Pairs
pursuant to the provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan, any A/B Mortgage Loan
and any Loan Pair, the right and obligation of the Primary Servicer to
administer such Mortgage Loan, such A/B Mortgage Loan and such Loan Pair in
accordance with the provisions hereof.
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"Servicing Documents": The Master Servicer Servicing Documents and
Primary Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, the
Primary Servicer shall service and administer the Mortgage Loans, the A/B
Mortgage Loans and the Loan Pairs that it is obligated to service and administer
pursuant to this Agreement on behalf of the Master Servicer and in the best
interests of and for the benefit of the Certificateholders and, with respect to
each B Note, the holder(s) of each such B Note and, with respect to each
Serviced Companion Mortgage Loan, the holder(s) of each such Serviced Companion
Mortgage Loan (as determined by the Primary Servicer in its good faith and
reasonable judgment), in accordance with applicable law, the terms of this
Agreement and the terms of the respective Mortgage Loans, A/B Mortgage Loans and
Loan Pairs and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans, A/B Mortgage Loans and Loan
Pairs;
and without regard to: (I) any other relationship that the Primary
Servicer, or any Affiliate thereof, may have with the related Mortgagor; (II)
the ownership of any Certificate, B Note or Serviced Companion Mortgage Loan by
the Primary Servicer, or any Affiliate thereof; (III) the Master Servicer's
obligation to make Advances; and (IV) the right of the Primary Servicer (or any
Affiliate thereof) to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction; provided, however, that in no event shall the foregoing standards
be less than the applicable provisions of the Servicing Standard set forth in
the Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan,
the servicing standards set forth in the related A/B Intercreditor Agreement and
with respect to a Loan Pair, the servicing standards set forth in the related
Loan Pair Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or
proposed to cover more than the greatest of (i) 30,000 net rentable square feet,
(ii) thirty percent (30%) of the net rentable square footage of the Mortgaged
Property and (iii) such higher square-footage threshold, if any, that is set
forth in the Pooling and Servicing Agreement and that the Master Servicer is
allowed to approve without Special Servicer approval.
"Significant Obligor": A "significant obligor" within the meaning of
Item 1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement with
respect to a Lease on a form customarily used by Primary Servicer with respect
to Mortgaged Properties of similar type and consistent with the Servicing
Standard.
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"Special Servicer": Centerline Servicing Inc. or any successor thereto
as special servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Master
Servicer upon the termination of the Primary Servicer resulting from any Primary
Servicer Default, if any, who shall thereafter perform the Services with respect
to the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs; provided, that
the Master Servicer shall perform all Services with respect to the Mortgage
Loans, the A/B Mortgage Loans and the Loan Pairs until such Person, if any, is
selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans, the A/B
Mortgage Loans and the Loan Pairs as set forth in Exhibit B-4 attached to this
Agreement.
"TOP29 Trust": The trust established under the Pooling and Servicing
Agreement.
"Trustee": LaSalle Bank National Association or any successor thereto
as trustee under the Pooling and Servicing Agreement.
ARTICLE II.
PRIMARY SERVICING
SECTION 2.1 PRIMARY SERVICING From the Closing Date until the Primary
Servicing Termination Date, Master Servicer hereby authorizes and directs
Primary Servicer to service each Mortgage Loan, each A/B Mortgage Loan and each
Loan Pair as primary servicer on behalf of and at the direction of the Master
Servicer as provided in this Agreement. The Services shall consist of the
following:
(a) Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements under the Task Description, the Post
Closing Matters Description, the Payment and Collection Description and the
Payment and Mortgage Loan Status Reports, in each case in accordance with
the terms of this Agreement and, with respect to each B Note, the terms of
the related A/B Intercreditor Agreement and, with respect to each Serviced
Companion Mortgage Loan, the terms of the related Loan Pair Intercreditor
Agreement, and in a manner not inconsistent with the Pooling and Servicing
Agreement. Primary Servicer shall also perform the obligations to which it
has expressly agreed under the Pooling and Servicing Agreement and the
Master Servicer's obligations set forth in Sections 2.1(c), 2.1(d), that
portion of 5.1(g) relating to the Escrow Status Report, 8.11(i), if
applicable, and 8.14 of the Pooling and Servicing Agreement relating to
Annual Statement and Rent Roll Reporting with respect to the Mortgage
Loans, the A/B Mortgage Loans and the Loan Pairs.
(b) Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and
the general allocation of responsibility of servicing obligations between
the Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing
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requests of a Mortgagor and allocating responsibility for handling such
requests based upon such classification. Master Servicer and Primary
Servicer have made efforts to reconcile the Task Description and Post
Closing Matters Description.
(c) Without limiting the foregoing, Primary Servicer shall
collect and remit payments on the Mortgage Loans, the A/B Mortgage Loans
and the Loan Pairs in accordance with the Payment and Collection
Description. For the purposes of this Agreement, the "Payment and
Collection Description" shall encompass all of the following
responsibilities and obligations set forth in the following subsections (i)
through (viii) and subsection (xii):
(i) On or prior to the Closing Date, the Primary Servicer shall
establish a Primary Servicer Collection Account, and give the Master
Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained and the account number of the Primary Servicer
Collection Account. Primary Servicer may direct the investment of
funds on deposit in the Primary Servicer Collection Account (including
the subaccounts thereof) subject to and in accordance with the
criteria and requirements set forth in (i) the applicable A/B
Intercreditor Agreement, as they relate to a particular B Note, (ii)
the applicable Loan Pair Intercreditor Agreement, as they relate to a
particular Serviced Companion Mortgage Loan and (iii) the Pooling and
Servicing Agreement relating to the Collection Account established
thereunder (construed as if the Primary Servicer Collection Account
were such Collection Account), including without limitation the
obligation, if any, to deposit into such account the amount of any
investment losses to the extent required in the Pooling and Servicing
Agreement and, with respect to each B Note, the terms of the related
A/B Intercreditor Agreement and, with respect to each Serviced
Companion Mortgage Loan, the terms of the related Loan Pair
Intercreditor Agreement.
(ii) The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans, the A/B Mortgage Loans and the Loan
Pairs (except for payments due on or prior to the Cut-Off Date), as
well as any required Principal Prepayments, Prepayment Premiums, late
charges, Insurance Proceeds, Condemnation Proceeds and any and all
other amounts due from the Mortgagor or a third party with respect to
the Mortgage Loans, A/B Mortgage Loans and Loan Pairs pursuant to the
Loan Documents; provided, however, that with respect to any payments
that are required under the terms of the applicable loan documents to
be made directly to a Person other than the holder of the related
Mortgage Loan, B Note or Serviced Companion Mortgage Loan, the Primary
Servicer shall use efforts consistent with the Servicing Standard to
cause such payments to be made.
(iii) The Primary Servicer shall deposit all such payments and
collections received with respect to each A/B Mortgage Loan, each Loan
Pair and each Mortgage Loan (less any related Aggregate Servicing Fee
and any other payments due and payable to Primary Servicer from such
payment or collection under this Agreement with respect to such
mortgage loan) into the Primary Servicer Collection Account on or
before the next Business Day after receiving each such payment. The
Primary Servicer shall from time to time allocate payments and
collections received on or in respect of the Mortgage Loans, B Notes
and Serviced Companion Mortgage Loans, and shall make transfers
between the various subaccounts of the Primary Servicer Collection
Account, at times, in a manner, and in amounts, that are consistent
with the Pooling and Servicing Agreement, the related A/B
Intercreditor Agreement (if applicable) and the related Loan Pair
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Intercreditor Agreement (if applicable). In any event, with respect to
each Mortgage Loan that has a related B Note, and with respect to each
Mortgage Loan that has a related Serviced Companion Mortgage Loan, the
Primary Servicer shall make the above-described allocations within
three Business Days after receiving any payment or collection in
respect of such Mortgage Loan and/or the related B Note or the related
Serviced Companion Mortgage Loan, as applicable. For the avoidance of
doubt, if the Primary Servicer has notice or knowledge of fees,
expenses, reimbursements or other amounts that have been incurred or
that have accrued on or in respect of the mortgage loans serviced
hereunder, the Primary Servicer shall take account of such amounts in
making the allocations required under this subsection. The Primary
Servicer shall make all remittances to the holders of the B Notes and
the Serviced Companion Mortgage Loans to which such holders are
entitled at the times, in the manner and in the amounts required of
the Master Servicer under the Pooling and Servicing Agreement, the
related A/B Intercreditor Agreement (if applicable) and the related
Loan Pair Intercreditor Agreement (if applicable).
(iv) Subject to the previous subsection, the amount required to
be paid to the holder of such B Note or the holder of such Serviced
Companion Mortgage Loan, as applicable, the Primary Servicer shall
remit to the Master Servicer from the Primary Servicer Collection
Account, by wire transfer of immediately available funds, all funds in
such account (other than income and earnings on such account), and
shall not withdraw funds therefrom for any other purpose, except to
withdraw amounts required to be paid to the holder of the B Note or
the holder of the Serviced Companion Mortgage Loan, as applicable, and
any other amounts deposited therein by error, as follows: (1) in the
case of any payments received and collected during a Collection Period
on or before the Determination Date for such Collection Period,
Primary Servicer shall remit such payments on such Determination Date;
and (2) in the case of any payments received and collected by Primary
Servicer after the Determination Date for such Collection Period,
Primary Servicer shall remit all such payments on the first Business
Day following receipt of the amount of any such payments; provided,
however, that notwithstanding any contrary provision of clause (1) or
clause (2) all of the following provisions shall apply:
(1) in the case of any payment received on a Determination
Date for a Collection Period, Primary Servicer shall (i) provide
Master Servicer with immediate notice of Primary Servicer's
receipt of such payment and (ii) shall use its reasonable best
efforts to remit such payment to Master Servicer on the date of
receipt and in any event shall remit such payment to Master
Servicer within one Business Day following receipt (and Primary
Servicer shall in any event provide Master Servicer with
immediate notice of Primary Servicer becoming aware that any
Principal Prepayment is to be made on a Determination Date);
(2) any Scheduled Payment due during a Collection Period but
received after the end of such Collection Period shall be
remitted by Primary Servicer within one Business Day following
Primary Servicer's receipt of such Scheduled Payment;
(3) Primary Servicer shall use its reasonable best efforts
to remit to Master Servicer on the date of receipt of, and in any
event shall remit to Master Servicer within one Business Day
following receipt of, any unscheduled payments or Balloon
Payments that would result in a Prepayment Interest Shortfall;
and
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(4) any Scheduled Payment received and collected during a
Collection Period, but due on a Due Date occurring after the end
of such Collection Period, shall be remitted on the Determination
Date for the Collection Period in which such Due Date occurs.
(v) In the event any payments received by Primary Servicer
becomes NSF after the monies associated with that payment have been
remitted to the Master Servicer, the Master Servicer will return such
moneys to Primary Servicer by wire transfer in immediately available
funds within one Business Day of notice from the Primary Servicer. If
the Primary Servicer fails to remit to the Master Servicer when due
the total pool remittance required to be remitted under this Agreement
(whether or not such failure constitutes a Primary Servicer Default),
then interest shall accrue on the amount of the total pool remittance
and the Primary Servicer shall promptly pay such interest to the
Master Servicer, at a per annum rate equal to the Advance Rate from
and including the date when such remittance was required to be made to
but excluding the day when such remittance is actually made. If the
Primary Servicer fails to remit a single loan remittance more than
five (5) days after the applicable single loan payment or collection
was received by the Primary Servicer, then interest shall accrue on
the amount of such single loan remittance and the Primary Servicer
shall promptly pay such interest to the Master Servicer, at a per
annum rate equal to the Advance Rate from and including the date when
such remittance was required to be made to but excluding the date when
such remittance is actually made.
(vi) With respect to escrow or reserve payments as listed on the
Task Description, the Primary Servicer shall collect escrow or reserve
amounts with respect to the Mortgage Loans, A/B Mortgage Loans and
Loan Pairs, and shall deposit such funds in an escrow account, which
shall be an Eligible Account, and shall maintain, disburse and account
for such funds as provided in the Task Description, for real estate
taxes, insurance and reserves, and escrows for repairs, replacements,
principal and interest payments and lease payments and any other
matters specified in any agreement in which funds are held at the
time, and in the manner and for the purposes as otherwise required or
delineated in the Loan Documents and with respect to the Master
Servicer under the Pooling and Servicing Agreement. The Primary
Servicer may direct the investment of such funds subject to and in
accordance with the criteria and requirements set forth in the Pooling
and Servicing Agreement relating to Escrow Accounts, including without
limitation the obligation to deposit into the Escrow Account the
amount of any investment losses to the extent required in the Pooling
and Servicing Agreement. Primary Servicer shall have the benefit and
shall retain all interest and income earned on the Escrow Accounts for
the Mortgage Loans, A/B Mortgage Loans and Loan Pairs that is not paid
to Mortgagors.
(vii) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments received
on Mortgage Loans, A/B Mortgage Loans and Loan Pairs; (2) a
delinquency report; (3) a real estate tax delinquency report which may
be based upon information provided by Primary Servicer's real estate
tax service (if any) if engaged in accordance with Article VII of this
Agreement; (4) an insurance monitoring report; (5) a UCC form
monitoring report; and (6) the Day One Report. Primary Servicer shall
submit the Payment and Mortgage Loan Status Report described by clause
(1) above by electronic mail on each day that payments or funds are
remitted to the Master Servicer pursuant to
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Section 2.1(c) of this Agreement. Primary Servicer shall submit the
Payment and Mortgage Loan Status Report described by clause (2) above
by electronic mail, monthly no later than the tenth (10th) day of each
month for the previous month. Primary Servicer shall submit the
Payment and Mortgage Loan Status Reports described by clauses (3), (4)
and (5) above by electronic mail, quarterly no later than January 15,
April 15, July 15 and October 15 for the previous above quarter.
Primary Servicer shall submit the Payment and Mortgage Loan Status
Report described by clause (6) above by electronic mail, monthly no
later than the first (1st) day of each month in which the applicable
Distribution Date occurs for the then current Collection Period. If
the day on which any Payment and Mortgage Loan Status Report is
otherwise due as described above does not constitute a Business Day,
then such report shall be due on the immediately succeeding Business
Day.
(viii) Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package for
the Mortgage Loans, the A/B Mortgage Loans and Loan Pairs as follows:
(1) Master Servicer shall complete all fields and aspects of
the CMSA Loan Setup File that are available from the Final
Prospectus Supplement. Upon completing all of such fields, Master
Servicer shall forward the CMSA Loan Setup File for the Mortgage
Loans, the A/B Mortgage Loans and the Loan Pairs to Primary
Servicer which shall complete the fields and aspects of the CMSA
Loan Setup File for the Mortgage Loans, the A/B Mortgage Loans
and the Loan Pairs that are not available from the Final
Prospectus Supplement and return to Master Servicer the completed
CMSA Loan Setup File for the Mortgage Loans, the A/B Mortgage
Loans and the Loan Pairs within five (5) Business Days of
receiving such file from Master Servicer. Master Servicer shall
deliver a CMSA Loan Setup File to Primary Servicer (a) for the
Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs only;
(b) in electronic form; (c) using an Excel file; and (d) with all
fields in the same order as the CMSA Loan Setup File. Primary
Servicer and Master Servicer acknowledge that delivery of the
CMSA Loan Setup File is to commence with the Report Date in April
2008.
(2) Commencing in the applicable "Month of Initial Report"
set forth opposite each report described below, the Primary
Servicer shall complete such report at the frequency set forth
opposite such report below and deliver such report to the Master
Servicer at or before the time described opposite such report
below (and with respect to an A/B Mortgage Loan or a Loan Pair,
deliver any additional reports to the holder of the related B
Note or the holder of the related Serviced Companion Mortgage
Loan, as applicable, which may be required to be delivered to the
holder of such B Note or the holder of such Serviced Companion
Mortgage Loan, at such times as may be required pursuant to the
Pooling and Servicing Agreement and/or the applicable A/B
Intercreditor Agreement or the applicable Loan Pair Intercreditor
Agreement):
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Month of Frequency
Description of Initial of
Report Report Report Time of Required Delivery to the Master Servicer
----------------------------------------------------------------------------------------------------------------------------
CMSA Property File April 2008 Monthly 10th Business Day for prior month but in no event later
than the Business Day prior to the Report Date in such
month.
CMSA Operating Statement June 2008 for year- Annually With respect to each calendar year, beginning in 2008 for
Analysis Report, CMSA end 2007 year-end 2007, the earlier of (i) 30 days after receipt of
Financial File and CMSA the underlying operating statements from the borrower or
NOI Adjustment Worksheet (ii) June 1.
CMSA Loan Level Reserve April 2008 Monthly 10th Business Day for prior month but in no event later
Report than the Business Day prior to the Report Date in such
month.
CMSA Watch List April 2008 Monthly 10th Business Day for prior month but in no event later
than the Business Day prior to the Report Date in such
month.
CMSA Comparative Financial April 2008 Monthly 10th Business Day for prior month but in no event later
Status Report than the Business Day prior to the Report Date in such month
CMSA Operating Statement July 2008 Quarterly, With respect to a calendar quarter, within 95 days
Analysis Report and CMSA but with following the end of such calendar quarter (commencing with
Financial File respect to the quarter ending on March 31, 2008).
only the
first three
calendar
quarters in
each year
With respect to each Mortgage Loan that has a related B Note or a related
Serviced Companion Mortgage Loan, the Primary Servicer shall deliver to the
Master Servicer and the holder of each such related B Note (if applicable) and
each such related Serviced Companion Mortgage Loan (if applicable) a CMSA Total
Loan Report relating to each Collection Period and providing information
relating only to such Mortgage Loan, its related B Note(s) (if applicable) and
its related Serviced Companion Mortgage Loan(s) (if applicable). Such report
shall be delivered on the Business Day preceding the Report Date in each month.
(3) The Master Servicer shall have the responsibility to
complete and deliver the following reports in accordance with the
Pooling and Servicing Agreement: CMSA Loan Setup File (subject to
Subsection (1)), CMSA Loan Periodic Update File; CMSA Delinquent
Loan Status Report; CMSA REO Status Report and CMSA Historical
Loan Modification Report.
(4) Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Master Servicer specific
information or data in Primary Servicer's possession and
necessary to complete a report for which Master Servicer is
responsible, upon the written request of Master Servicer; and (b)
the Master Servicer shall reasonably cooperate to provide to the
Primary Servicer specific information or data in the Master
Servicer's possession, as may be
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requested in writing by the Primary Servicer, to enable the
Primary Servicer to prepare and deliver to each holder of a B
Note or to each holder of a Serviced Companion Mortgage Loan any
reports or notices required to be delivered to each such holder
of a B Note or each such holder of a Serviced Companion Mortgage
Loan, pursuant to the provisions of the applicable A/B
Intercreditor Agreement or the applicable Loan Pair Intercreditor
Agreement.
(5) Notwithstanding the definitions of various CMSA reports
in this Agreement that directly link such reports to a form
specified in the Pooling and Servicing Agreement, Master Servicer
shall be entitled to amend the forms of such reports that Primary
Servicer must deliver under this Agreement, provided that the
Commercial Mortgage Securities Association has amended the
applicable reports and published such amendments as its revised
form on its website.
(6) All CMSA Operating Statement Analysis Reports, CMSA NOI
Adjustment Worksheets, financial statements, rent rolls, and
budgets delivered by the Primary Servicer to the Master Servicer
pursuant hereto shall be labeled according to the Centerline
Naming Convention for Electronic File Delivery.
(ix) Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection Description
and Payment and Mortgage Loan Status Reports. In the event of any
conflict between (1) the Task Description and (2) the Payment and
Collection Description and Payment and Mortgage Loan Status Reports,
then the Payment and Collection Description and Payment and Mortgage
Loan Status Reports shall govern.
(x) The Primary Servicer shall be responsible for the calculation
of any and all Prepayment Premiums payable under each Mortgage Loan,
each A/B Mortgage Loan and each Loan Pair.
(xi) Reserved.
(xii) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan or the Loan
Pair, which are payable to the holder of the applicable B Note or the
holder of the applicable Serviced Companion Mortgage Loan pursuant to
the provisions of the applicable A/B Intercreditor Agreement or Loan
Pair Intercreditor Agreement, shall be paid by the Primary Servicer to
such B Note holder or such holder of the Serviced Companion Mortgage
Loan, as applicable, no later than three Business Days after
collection of such funds. In the event that the Primary Servicer
determines (in its sole discretion) that in order to confirm the
amount to be disbursed to a B Note holder or a holder of the Serviced
Companion Mortgage Loan pursuant to the provisions of the A/B
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable, the Primary Servicer requires information from the Master
Servicer, the Primary Servicer shall have the right, within three
Business Days after collection of the funds at issue, to deliver to
the Master Servicer a written request for such information. The Master
Servicer shall provide the information requested, to the extent that
such information is in the possession of the Master Servicer or
involves a calculation to be made by the Master Servicer on the basis
of information in the possession of the Master Servicer, no later than
three Business Days after the Master Servicer receives the Primary
Servicer's written request, and the Primary Servicer shall make the
disbursement at issue
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to the B Note holder or the holder of the Serviced Companion Mortgage
Loan, as applicable, no later than three Business Days after it
receives the information from the Master Servicer needed to confirm
the disbursement at issue. In the event that the Master Servicer
determines (in its sole discretion) that it is necessary or desirable
to direct the Primary Servicer as to how to allocate amounts collected
for an A/B Mortgage Loan or a Loan Pair between the holders of the
related Mortgage Loan and its related B Note or the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced
Companion Mortgage Loan, the Master Servicer shall have the right, no
later than the end of the second Business Day after each of the A/B
Mortgage Loan's or Loan Pair's, as applicable, scheduled monthly
payment dates, to deliver a written direction notice to the Primary
Servicer. The Primary Servicer shall comply with the Master Servicer's
directions, absent a disagreement (which shall be promptly
communicated in writing to the Master Servicer) and addressed by the
Master Servicer and the Primary Servicer within the time frames set
forth in this Section 2.1(c)(xii). If there is any disagreement
between the Master Servicer and the Primary Servicer with respect to
the allocation of funds on the A/B Mortgage Loan or Loan Pair, then
the Master Servicer and the Primary Servicer shall consult with each
other in good faith but the determination of the Master Servicer shall
control and no consultation shall extend in duration beyond the date
reasonably necessary for allocations, remittances and reporting to be
timely made to the holders of the A Note and B Note or to the holders
of the Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, as applicable. In the event that collection
responsibilities for an A/B Mortgage Loan or Loan Pair are transferred
from the Primary Servicer to the Master Servicer or Special Servicer
pursuant to the applicable provisions of this Agreement or the Pooling
and Servicing Agreement, all amounts that are collected by the Master
Servicer or the Special Servicer, as applicable, during a Collection
Period with respect to such A/B Mortgage Loan or Loan Pair and are
payable to the holder of the applicable B Note or the applicable
Serviced Companion Mortgage Loan pursuant to the provisions of the
related A/B Intercreditor Agreement or Loan Pair Intercreditor
Agreement, as applicable, shall be remitted by the Master Servicer to
such B Note holder or the holder of the Serviced Companion Mortgage
Loan, as applicable, no later than three Business Days after the
collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement or the applicable Loan Pair
Intercreditor Agreement that may provide the Servicer with a longer
period of time to remit such collected funds to the B Note holder or
the holder of the Serviced Companion Mortgage Loan, as applicable,
(except that if the related Mortgaged Property has become an REO
Property, then the funds on deposit in the related REO Account related
to such REO Property shall be remitted to the Master Servicer by the
Special Servicer as and to the extent otherwise provided in Section
9.14(b) of the Pooling and Servicing Agreement and then, to the extent
remittable to the holder of the applicable B Note or the applicable
Serviced Companion Mortgage Loan, shall be so remitted on the next
succeeding Master Servicer Remittance Date).
(d) Commencing in the year 2009, Primary Servicer shall inspect,
or cause to be inspected, each of the Mortgaged Properties for the Mortgage
Loans, the A/B Mortgage Loans and Loan Pairs in accordance with Section
8.17 of the Pooling and Servicing Agreement and, promptly upon completion
of such inspection, shall deliver to Master Servicer and with respect to an
A/B Mortgage Loan, to the holder of the related B Note, if required by the
Pooling and Servicing Agreement and/or the applicable A/B Intercreditor
Agreement, and with respect to a Loan Pair, to the holder of the Serviced
Companion Mortgage Loan, if required by the Pooling and Servicing Agreement
and/or the applicable Loan Pair Intercreditor Agreement, a property
inspection report in the form attached as Exhibit B-3 ("Property Inspection
Description"). Each
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property inspection report delivered by the Primary Servicer shall be
imaged with the Centerline Naming Convention for Electronic File Delivery.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In
the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
(e) Primary Servicer shall promptly notify the Master Servicer of
any significant events affecting any one or more of the Mortgage Loans, A/B
Mortgage Loans and Loan Pairs, the related Mortgagors or the related
Mortgaged Properties which become known to Primary Servicer or of which the
Primary Servicer receives notice, such as a payment default, a bankruptcy,
a judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Master Servicer of all material collection
and customer service issues and, promptly following any request therefor by
the Master Servicer, shall furnish to the Master Servicer with copies of
any correspondence or other documents in the possession of the Primary
Servicer related to any such matter. The Primary Servicer shall use
reasonable efforts to promptly notify the Master Servicer as soon as the
Primary Servicer (exercising good faith and reasonable judgment in
accordance with the Servicing Standard) becomes aware that any Servicing
Advance will be required (or may reasonably be expected to be required) to
be made with respect to any Mortgage Loan, any A/B Mortgage Loan or any
Loan Pair under the standards imposed on the Master Servicer by the Pooling
and Servicing Agreement.
(f) Within 30 days following the Closing Date, Primary Servicer
shall deliver to Master Servicer for each of its Mortgage Loans, A/B
Mortgage Loans and Loan Pairs to be included in the Escrow Status Report,
the deadline or expiration date contained in the applicable escrow or
reserve agreement for completing the specific immediate engineering work,
completion of additional construction, environmental remediation or similar
one-time projects for which such Mortgage Loan, A/B Mortgage Loan or Loan
Pair is to appear in the Escrow Status Report.
(g) In addition, the Primary Servicer shall deliver or cause to
be delivered to Master Servicer any and all information as may reasonably
be necessary for the Master Servicer to perform its obligations under
Section 8.3(i) of the Pooling and Servicing Agreement (to the extent
related to the Mortgage Loans, A/B Mortgage Loans and/or Loan Pairs);
provided, however, that in the event that the Primary Servicer has sent a
notice to a ground lessor as contemplated by such Section 8.3(i) of the
Pooling and Servicing Agreement, the delivery to the Master Servicer of a
copy of such notice shall satisfy the Primary Servicer's obligation under
this section with respect to such ground lease.
(h) Primary Servicer shall perform all other obligations of the
Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection
with the performance of its obligations hereunder, the Primary Servicer shall be
entitled to request from the Master Servicer, and the Master Servicer agrees
that it shall provide, express instructions for the completion of any of the
Services to be performed or completed by the Primary Servicer, to the extent
necessary to clarify any ambiguities in the terms of this Agreement. The Master
Servicer further agrees that the Primary Servicer shall be entitled to rely upon
any such written instructions. The Primary Servicer and the Master Servicer,
respectively, shall perform all of their respective obligations as allocated and
set forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary
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servicing of the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs,
except as specifically set forth in this Agreement.
SECTION 2.2 STANDARD OF CARE The Primary Servicer shall perform all
Services on behalf of the Master Servicer in accordance with the terms of this
Agreement and the Servicing Standard and in a manner consistent with the
applicable provisions of the Pooling and Servicing Agreement and with respect to
an A/B Mortgage Loan, the applicable provisions of the related A/B Intercreditor
Agreement, and with respect to a Loan Pair, the applicable provisions of the
related Loan Pair Intercreditor Agreement.
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER As
consideration for the Primary Servicer's performance of the Services hereunder,
the Primary Servicer shall be entitled to deduct the Aggregate Servicing Fee.
The applicable component of the Aggregate Servicing Fee for each Mortgage Loan,
each B Note and each Serviced Companion Loan shall be payable from payments or
collections of interest received on such loan during the related Collection
Period. The Primary Servicer may deduct the various components of the Aggregate
Servicing Fee as contemplated by Section 2.1(c)(iii). Notwithstanding the
foregoing, Primary Servicer shall not be entitled to a Primary Servicing Fee
with respect to any mortgage loan serviced hereunder for which a Servicing
Transfer Event has occurred (unless such mortgage loan becomes a Rehabilitated
Mortgage Loan) or with respect to which the Primary Servicer has been terminated
as Primary Servicer under this Agreement and the Pooling and Servicing
Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing
Fee for all Mortgage Loans and Serviced Companion Mortgage Loans, even if (a)
any Mortgage Loan(s) or Serviced Companion Mortgage Loan(s) become Specially
Serviced Mortgage Loans; (b) Primary Servicer's servicing is terminated with
respect to particular Mortgage Loans or Serviced Companion Mortgage Loans or (c)
Primary Servicer is in default, is terminated or resigns under this Agreement.
If Primary Servicer is unable to deduct the Excess Servicing Fee in accordance
with Section 2.1(c)(iii) because it no longer services a Mortgage Loans or a
Serviced Companion Mortgage Loan or for any other reason (other than transfer or
assignment of the rights to the Excess Servicing Fee), then Master Servicer (and
any successor) shall cause the Excess Servicing Fee to be paid on the Mortgage
Loan(s) or Serviced Companion Mortgage Loan(s) to Primary Servicer monthly in
accordance with the terms of the Pooling and Servicing Agreement.
The Primary Servicer shall have the benefit and shall retain all
interest and income earned on the Primary Servicer Collection Account for the
Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs. If Primary Servicer
is terminated under this Agreement, it shall be entitled to collect all such
interest and income that accrues through the date of termination. If a Mortgage
Loan, an A/B Mortgage Loan or a Loan Pair becomes a Specially Serviced Mortgage
Loan, Primary Servicer shall be entitled to collect all such interest and income
that accrues through the date of the applicable Servicing Transfer Event. The
right to retain such interest and income shall resume if such Mortgage Loan, an
A/B Mortgage Loan or a Loan Pair becomes a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive
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the right to collect a fee or portion of a fee to which it is entitled under
this Agreement but may not waive or otherwise affect the rights of other parties
to any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents and the Mortgagor makes such reimbursement.
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES (a) The
Primary Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (i)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer and (ii) in lieu of the representation described in the first
clause of Section 8.20(a)(i) of the Pooling and Servicing Agreement, the Primary
Servicer represents that the Primary Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the
jurisdiction of its organization. Primary Servicer further represents that since
origination of each Mortgage Loan, A/B Mortgage Loan and Loan Pair, Primary
Servicer has serviced each of the Mortgage Loans, A/B Mortgage Loans and Loan
Pairs in accordance with its terms.
(b) The Primary Servicer hereby makes for the benefit of the Master
Servicer the same representations and warranties as are made by the Primary
Servicer to the Depositor under Section 1.02 of that certain Indemnification
Agreement, dated February 13, 2008, between the Primary Servicer, the Depositor
and the Underwriters.
ARTICLE III.
DOCUMENTS AND OTHER MATTERS
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS The Primary
Servicer shall segregate the Primary Servicer Servicing Documents related to the
Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs from all other assets
of the Primary Servicer and, upon request, forward to the Master Servicer copies
of such documents or originals of such documents if in the possession of Primary
Servicer and not part of the Mortgage File forwarded to the Trustee. The Primary
Servicer acknowledges that any letter of credit held by it shall be held in its
capacity as agent of the Trust, and if the Primary Servicer sells its rights to
service the applicable Mortgage Loan, A/B Mortgage Loan or Loan Pair, the
Primary Servicer shall assign the applicable letter of credit to the Trust or at
the direction of the Special Servicer to such party as the Special Servicer may
instruct, and the Primary Servicer shall indemnify the Trust (and the holder of
any related B Note or Serviced Companion Mortgage Loan) for any loss caused by
the ineffectiveness of such assignment.
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION The
Primary Servicer shall make available to the Master Servicer or any Successor
Primary Servicer, at a reasonable time, such information as the Master Servicer
or such Successor Primary Servicer shall reasonably request
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in writing and shall make available to the Master Servicer or any Successor
Primary Servicer or Persons designated by the Master Servicer or such Successor
Primary Servicer such documents as the Master Servicer shall reasonably request
in writing. The Master Servicer shall make available to the Primary Servicer, at
a reasonable time, such information as the Primary Servicer shall reasonably
request in writing in connection with the performance of the Services and,
subject to the same terms and conditions as are set forth in Section 8.15 of the
Pooling and Servicing Agreement, shall make available to the Primary Servicer or
Persons designated by the Primary Servicer such documents related to the
Mortgage Loan, the A/B Mortgage Loans and the Loan Pairs and the Servicing of
the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs as the Primary
Servicer shall reasonably request in writing.
ARTICLE IV.
MASTER SERVICER ASSISTANCE
SECTION 4.1 MASTER SERVICER ASSISTANCE
(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary and any other
notwithstanding provisions in this Agreement (including any contrary provision
of Exhibit B-2), the Primary Servicer shall do any and all things reasonably
requested by the Master Servicer to enable the Master Servicer to comply with
its obligations under the Pooling and Servicing Agreement. Before the Master
Servicer releases all or any portion of any Mortgage File or document contained
therein or acquired in respect thereof to the Primary Servicer, the Master
Servicer may require the Primary Servicer to execute a receipt therefor or, in
the event of a Mortgage Loan, an A/B Mortgage Loan or a Loan Pair that has been
repaid in full, a certificate with respect to the payment in full of the related
Mortgage Loan, A/B Mortgage Loan or Loan Pair.
(b) If required in connection with the provision of the Services, the
Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans, A/B
Mortgage Loans and Loan Pairs and carry out its duties hereunder, in each case
in accordance with the Servicing Standard and the terms of this Agreement. The
Primary Servicer hereby agrees to indemnify the Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use of
any such power of attorney.
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS The Primary Servicer
shall promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Mortgagor that are received by the Primary Servicer
and with respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair such
other matters as would, consistent with the Servicing Standard, require
notification to the owner or the servicer of the Mortgage Loan, A/B Mortgage
Loan or Loan Pair. The Master Servicer shall notify the Primary Servicer of any
Specially Serviced Mortgage Loan becoming a Rehabilitated Mortgage Loan promptly
following the Master Servicer's receipt of notice to such effect from the
Special Servicer and shall provide Primary Servicer with all relevant documents
received during the time that the relevant Mortgage Loan, A/B Mortgage Loan or
Loan Pair was a Specially Serviced Mortgage Loan following the Master Servicer's
receipt of such documents from the Special Servicer. Upon the request of Primary
Servicer, Master Servicer shall request from the Special Servicer all such
relevant documents with respect to a Rehabilitated Mortgage Loan.
Notwithstanding
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anything contained herein to the contrary, the Primary Servicer shall not
without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating the Primary
Servicer's representative capacity, or (ii) knowingly take any action that
causes the Trustee to be registered to do business in any state, provided,
however, that the preceding clause (i) shall not apply to the initiation of
actions relating to a Mortgage Loan that the Primary Servicer is servicing
pursuant to its duties herein (in which case the Primary Servicer shall give
three (3) Business Days prior notice to the Trustee of the initiation of such
action).
ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
SECTION 5.1 NOTICE OF LITIGATION With respect to any Mortgage Loan,
A/B Mortgage Loan or Loan Pair as to which litigation is instituted, the Primary
Servicer, if aware of such litigation, shall notify the Master Servicer
immediately as to the status of the litigation related to such Mortgage Loan,
A/B Mortgage Loan or Loan Pair and shall, when reasonably required or requested
by the Master Servicer, provide to the Master Servicer copies of all pertinent
information in the Primary Servicer's possession related to such litigation,
including, without limitation, copies of related Servicing Documents.
SECTION 5.2 NO PERSONAL SOLICITATION The Primary Servicer hereby
agrees that it will not knowingly take any action or cause any action to be
taken by any of its agents or Affiliates, or independent contractors or working
on its behalf, to personally, by telephone or mail, solicit the prepayment of
any Mortgage Loan, A/B Mortgage Loan or Loan Pair by any Mortgagor. Primary
Servicer agrees not to forward to any Mortgagor or other obligors under a
Mortgage Loan, A/B Mortgage Loan or Loan Pair, any correspondence or documents
between Master Servicer and Primary Servicer regarding a Post Closing Request
(except the Requirements List (as defined in Exhibit B-2(c)) without the consent
of the Master Servicer or Special Servicer (acting in its sole discretion),
unless required by law.
SECTION 5.3 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
(a) The Primary Servicer, at its own expense, shall maintain in effect a
fidelity bond (the "Primary Servicer Fidelity Bond") and an errors and omissions
policy (the "Primary Servicer Errors and Omissions Insurance Policy") with a
Qualified Insurer, naming the Master Servicer as loss payee, affording coverage
for all directors, officers and employees. The Primary Servicer Errors and
Omissions Insurance Policy and Primary Servicer Fidelity Bond shall be in such
form and amount that would satisfy the same requirements for such policies as
the Master Servicer must satisfy as set forth in Section 8.2 of the Pooling and
Servicing Agreement. Notwithstanding any other provisions of this Agreement, the
Primary Servicer shall be permitted to self-insure with respect to its
obligations to maintain the Primary Servicer Fidelity Bond and a Primary
Servicer Errors and Omissions Policy to the extent the Master Servicer is
permitted under Section 8.2 of the Pooling and Servicing Agreement (construed as
if the references therein to the Master Servicer were instead references to the
Primary Servicer). The Primary Servicer shall furnish to the Master Servicer,
not later than thirty (30) days after the Closing Date, evidence of the Primary
Servicer's compliance with this Section 5.3(a).
(b) The Primary Servicer shall promptly report in writing to the
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions Insurance
Policy and shall furnish to the Master Servicer upon written request copies of
all binders and policies or certificates evidencing that such bond and insurance
policy are in full force and effect. The Primary Servicer shall promptly report
in writing to the Master Servicer all cases of embezzlement or fraud or
irregularities of operation relating to the servicing of the Mortgage Loans, of
any A/B Mortgage Loan and of any Loan Pair by the Primary Servicer and its
employees, officers, directors, agents and representatives if such events
involve funds relating to the Mortgage Loans, the A/B Mortgage Loans and the
Loan Pairs. The total of such losses, regardless of whether claims are filed
with
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the applicable insurer or surety, shall be disclosed in such reports together
with the amount of such losses covered by insurance. If a bond or insurance
claim report is filed with any of the Primary Servicer's bonding companies or
insurers relating to the Mortgage Loans, the A/B Mortgage Loans or the Loan
Pairs or the servicing thereof, a copy of such report (which report may omit any
references to individuals suspected of such embezzlement, fraud or
irregularities of operation) shall be promptly furnished to the Master Servicer.
SECTION 5.4 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED
INFORMATION The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the Primary
Servicer, which financial statements shall be certified by the Primary
Servicer's chief financial officer to be true, correct and complete. The Primary
Servicer shall notify the Master Servicer, as of the Closing Date, of the
Primary Servicer's fiscal year and shall notify the Master Servicer promptly
after any change thereof.
SECTION 5.5 NO ADVANCING Under no circumstance shall the Primary
Servicer make or have an obligation to make any Advances.
SECTION 5.6 REMIC COMPLIANCE The Primary Servicer shall comply with
all of the obligations otherwise imposed on the Master Servicer under Article
XII of the Pooling and Servicing Agreement insofar as such obligations relate to
the Mortgage Loans, the A/B Mortgage Loans and/or the Loan Pairs.
SECTION 5.7 INSPECTION RIGHTS The Primary Servicer shall afford the
Master Servicer and the Trustee, upon reasonable notice and during normal
business hours, reasonable access to all records, information, books and
documentation regarding the applicable Mortgage Loans, the A/B Mortgage Loans
and the Loan Pairs, and all accounts, insurance policies and other relevant
matters relating to this Agreement, and access to Primary Servicing Officers of
the Primary Servicer responsible for its obligations hereunder. Without limiting
the preceding sentence, Master Servicer may visit the offices of Primary
Servicer no more than once annually for the purpose of reviewing Primary
Servicer's compliance with this Agreement upon reasonable notice and during
normal business hours, and Primary Servicer shall reasonably cooperate with
Master Servicer to provide Master Servicer with the information that Master
Servicer reasonably requests to permit such review. Primary Servicer shall
reimburse Master Servicer for its reasonable and actual travel expenses incurred
in connection with such review in an amount not to exceed $5,000 annually in
total for this Agreement and all similar commercial mortgage loan servicing
agreements in place between Primary Servicer and Master Servicer. Primary
Servicer shall have no obligation to provide access to non-public information
not pertaining to the Mortgage Loans, the A/B Mortgage Loans or the Loan Pairs
or to proprietary information relating to Primary Servicer.
SECTION 5.8 AUTHORIZED OFFICER Primary Servicer shall provide Master
Servicer promptly with a written list of authorized Servicing Officers of
Primary Servicer, which may be amended from time to time by written notice from
Primary Servicer to Master Servicer; provided, however, that such list shall
denote one principal Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
SECTION 5.9 ADDITIONAL REPORTS Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans, the A/B Mortgage
Loans and the Loan Pairs as the Master Servicer may from time to time reasonably
request in accordance with the Servicing Standard and shall reasonably cooperate
with Master Servicer to aid Master Servicer in its obligations to produce
additional reports and respond to inquiries under the Pooling and Servicing
Agreement.
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SECTION 5.10 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES (a) (a) For
any Mortgage Loan, Primary Servicer shall require Principal Prepayments to be
made so as not to cause a Prepayment Interest Shortfall. If the Loan Documents
of a related Mortgage Loan do not allow Primary Servicer to require Principal
Prepayments (or condition acceptance of Principal Prepayments) on a date that
will avoid a Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date
Mortgage Loan"), then the Primary Servicer shall pay to Master Servicer on the
date specified in Section 2.1(c)(iv) of this Agreement, in addition to all other
amounts due for such Principal Prepayment, an amount payable by the Primary
Servicer from its own funds without reimbursement therefor equal to any
Prepayment Interest Shortfall that results from such Principal Prepayment (for
the avoidance of doubt, no such reimbursement shall be required with respect to
any B Notes or any Serviced Companion Mortgage Loans); provided, however, that
for all Principal Prepayments received during any Collection Period with respect
to Non-Mandatory Prepayment Date Mortgage Loans, the Primary Servicer shall in
no event be required to remit an amount greater than the amount of the aggregate
Primary Servicing Fees for such Collection Period, plus any investment income
earned on the amount prepaid prior to the related Distribution Date.
(b) If the Mandatory Prepayment Date Assumption proves to be
inaccurate as to any Mortgage Loan and, as a direct consequence of that
inaccuracy, the Master Servicer is required to make a payment of Compensating
Interest on any Master Servicer Remittance Date pursuant to Section 8.10(c) of
the Pooling and Servicing Agreement in respect of Prepayment Interest Shortfalls
arising on that Mortgage Loan during the then most recently ended Collection
Period, the Primary Servicer shall reimburse the Master Servicer the amount of
such Compensating Interest payment attributable to that Mortgage Loan promptly
following request therefor by the Master Servicer (for the avoidance of doubt,
no such reimbursement shall be required with respect to any B Note or any
Serviced Companion Mortgage Loan; provided that, such reimbursement shall be
required to be made to the applicable master servicer under any applicable other
ABS Issuing Entity that holds the applicable Serviced Companion Mortgage Loan if
required pursuant to the terms of the related pooling and servicing agreement).
The amount of damages, if any, due and owing from the Primary Servicer under the
PCFII Servicing Rights Purchase Agreement with respect to an inaccuracy of the
Mandatory Prepayment Date Assumption shall be reduced by the amount of any
Compensating Interest paid by the Primary Servicer hereunder with respect to the
applicable Mortgage Loan. For the avoidance of doubt, no such reimbursement
shall be required to be made in connection with Prepayment Interest Shortfalls
resulting from involuntary Principal Prepayments except to the extent the
Primary Servicer did not apply the proceeds of such involuntary Principal
Prepayments in accordance with the terms of the related Mortgage Loan documents.
(c) If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as
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required under Section 2.1 and Master Servicer shall, on the Master Servicer
Remittance Date immediately following the remittance of the Principal Prepayment
by the Primary Servicer to the Master Servicer, remit to Primary Servicer a pro
rata portion (based upon all Prepayment Interest Excesses remitted to Master
Servicer by all Primary Servicers (as defined in the Pooling and Servicing
Agreement) with respect to such Collection Period) of the amount by which the
amount of the Prepayment Interest Excesses for such Collection Period exceed all
Prepayment Interest Shortfalls (excluding, with respect to all of the Primary
Servicers, any Prepayment Interest Shortfalls of the type described in clause
(b) above) for such Collection Period with respect to any of the mortgage loans
(whether or not the subject of this Agreement) that are serviced under the
Pooling and Servicing Agreement (except that if the aggregate pro rata portion
owed to Primary Servicer during any Collection Period as a result of such
calculation exceeds $20,000, Master Servicer shall remit to Primary Servicer
such pro rata portion no later than three (3) Business Days prior to the
Distribution Date for the applicable Collection Period).
SECTION 5.11 CONSENTS Primary Servicer shall (a) obtain the consent of
the Special Servicer with respect to assignments and assumptions of Mortgage
Loans, A/B Mortgage Loans or Loan Pairs in accordance and subject to the terms
of Section A.1(c)(ii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the
Pooling and Servicing Agreement; (b) obtain the consent of the Master Servicer
with respect to the defeasance of Mortgage Loans in accordance with and subject
to the terms of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c)
obtain the consent of the Special Servicer with respect to additional liens,
monetary encumbrances and mezzanine financings in accordance with and subject to
the terms of Section A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Section
8.7 of the Pooling and Servicing Agreement; (d) notify Master Servicer of any
Materiality Determination, which shall thereafter be handled in accordance with
Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; (e) with
respect to an A/B Mortgage Loan, if required by the Pooling and Servicing
Agreement and/or the related A/B Intercreditor Agreement, obtain the consent of
(or, if applicable, engage in consultation with) the holder(s) of the related B
Note for those actions which require the consent of (or, if applicable,
consultation with) such B Note holder(s); and (f) with respect to a Loan Pair,
if required by the Pooling and Servicing Agreement and/or the related Loan Pair
Intercreditor Agreement, obtain the consent of (or, if applicable, engage in
consultation with) or consult with (or, if applicable, engage in consultation
with), as applicable, the holder(s) of the related Serviced Companion Mortgage
Loan for those actions which require consent of (or, if applicable, consultation
with) the holder(s) of such Serviced Companion Mortgage Loan.
SECTION 5.12 QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer shall execute and deliver to Master Servicer a
certification substantially in the form set forth in Exhibit D hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in April 2008 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
SECTION 5.13 EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS
(a) Regulation AB Compliance. The Primary Servicer shall comply with
the reporting and certification requirements required to be complied with by a
"Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant" or an
"Additional Servicer" under Article XIII of the Pooling and Servicing Agreement
(whether or not the Primary Servicer's activities satisfy the percentage
requirement set forth in the definition of "Servicing Function Participant"
under the Pooling and Servicing Agreement (or, implicitly, in the definitions of
"Reporting Servicer" or "Sub-Servicer" under the Pooling and Servicing
Agreement) or the definitional requirements of "Additional Servicer" under the
Pooling and Servicing Agreement). The parties acknowledge the entitlement
granted to the Master
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Servicer and the Primary Servicer under the Pooling and Servicing Agreement to
conclusively assume that there is no "significant obligor" other than a party
identified as such in the Prospectus Supplement. The Primary Servicer shall be
entitled to rely on such provisions of the Pooling and Servicing Agreement and
such acknowledgements for purposes of its duties under this Section 5.13.
(b) General Reporting Obligations. The Primary Servicer shall comply
from time to time with the reporting and certification requirements set forth in
Section 5.13(c) with respect to each ABS Issuing Entity. For such purpose,
Section 5.13(c) shall be construed separately in relation to each ABS Issuing
Entity. If any mortgage loan serviced hereunder is not initially held by the
TOP29 Trust, then any ABS Issuing Entity to which such mortgage loan may
subsequently be transferred shall be recognized as an ABS Issuing Entity for
purposes of this Section from and after the effective date set forth in a notice
of such transfer delivered to the Primary Servicer, which notice sets forth the
name of the ABS Issuing Entity, the name and address of the depositor for such
ABS Issuing Entity, the name and address of the trustee for such ABS Issuing
Entity, the name and address of any paying agent and/or certificate
administrator for such ABS Issuing Entity that is not the same person as the
trustee for such ABS Issuing Entity and the name and address of the applicable
master servicer for such ABS Issuing Entity. In no event shall such an effective
date occur earlier than the date that is five (5) Business Days following the
delivery of such notice. If an affiliate of the Primary Servicer is the party
that transfers any such mortgage loan to the depositor for such other ABS
Issuing Entity, delivery of notice shall not constitute a condition to the
recognition of such other ABS Issuing Entity.
For example and not as a limitation of the preceding paragraph, if a
hypothetical promissory note designated "Note A-1" and a hypothetical promissory
note designated "Note A-2" are secured by the same mortgaged property, such
"Note A-1" is held by the TOP29 Trust and such "Note A-2" is held by a different
commercial mortgage trust, then (i) one set of the reports required hereunder
must be prepared and delivered with respect to the trust that holds such "Note
A-1" and a second set of the reports required hereunder must be prepared and
delivered with respect to the trust that holds such "Note A-2", (ii) for
purposes of measuring percentages of pool assets, the first set of reports must
reflect (where applicable) a measurement of percentages of pool assets by
reference to the pool of assets held by the trust that holds such "Note A-1" and
the second set of reports must reflect (where applicable) a measurement of
percentages of pool assets by reference to the pool of assets held by the trust
that holds such "Note A-2" and (iii) references in the succeeding provisions of
this Section to the "ABS Issuing Entity" shall mean, for purposes of the first
set of reports, the trust that holds such "Note A-1" and, for purposes of the
second set of reports, the trust that holds such "Note A-2".
(c) Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing Entity
(for so long as it is subject to Exchange Act reporting requirements), not
later than the date set forth in Section 13.7 of the Pooling and Servicing
Agreement with respect to any event described below of which the Primary
Servicer becomes aware, the Primary Servicer shall deliver to the Depositor
or other Applicable Depositor (with a copy to the Master Servicer) a report
(a "Primary Servicer Form 8-K Information Report") setting forth all of the
information regarding such event that is required to be included in a
Current Report on Form 8-K ("Form 8-K") under the Exchange Act, to the
extent that the Primary Servicer is required to deliver such information
under Article XIII of the Pooling and Servicing Agreement.
(ii) Form 10-D Information. With respect to each ABS Issuing
Entity and each Distribution Date (for so long as such ABS Issuing Entity
is subject to Exchange Act reporting requirements), not later than the date
(in each month) set forth in Section 13.4 of the
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Pooling and Servicing Agreement, the Primary Servicer shall deliver to the
Depositor or other Applicable Depositor (with a copy to the Master
Servicer) a report (a "Primary Servicer Form 10-D Information Report")
setting forth all of the information that is required to be included in the
Asset-Backed Issuer Distribution Report on Form 10-D ("Form 10-D") under
the Exchange Act relating to the Distribution Date occurring in such month,
to the extent that the Primary Servicer is required to deliver such
information under Article XIII of the Pooling and Servicing Agreement.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long as it is
subject to Exchange Act reporting requirements), not later than the date in
each month set forth in Section 13.5 of the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Depositor or other
Applicable Depositor (with a copy to the Master Servicer) a report (a
"Primary Servicer Form 10-K Information Report") setting forth all of the
information (other than a report regarding its assessment of compliance, a
report by a registered public accounting firm that attests to and reports
on such assessment report and a statement of compliance, which reports and
statements shall be governed by subsection (c)(iv)) that is required to be
included in an Annual Report on Form 10-K (a "Form 10-K") under the
Exchange Act relating to the most recently ended calendar year, to the
extent that the Primary Servicer is required to deliver such information
under Article XIII of the Pooling and Servicing Agreement.
(iv) Annual Compliance Information. Not later than the fifth
Business Day prior to the date when the Primary Servicer is required to
deliver such reports and statement under the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Master Servicer the
following reports and statement:
(A) a report regarding its assessment of compliance with the
servicing criteria specified in Item 1122(d) of Regulation AB, as of
and for the period ending the end of the prior calendar year, with
respect to asset-backed securities transactions taken as a whole that
are backed by the same asset type as that included in the ABS Issuing
Entity, which report of assessment shall or would conform to the
criteria set forth in Item 1122(a) and Item 1122(c)(1) of Regulation
AB;
(B) a report by a registered public accounting firm that
attests to, and reports on, the assessment described in the preceding
clause (A), which report shall be made in a manner that conforms or
would conform to the standards for attestation engagements issued or
adopted by the Public Company Accounting Oversight Board and shall or
would conform to the requirements of Item 1122(b) and Item 1122(c)(1)
of Regulation AB; and
(C) a statement of compliance from the Primary Servicer that
shall or would comply with Item 1123 of Regulation AB, and signed by
an authorized officer of the Primary Servicer, to the effect that: (a)
a review of the Primary Servicer's activities during the then
most-recently ended calendar year and of its performance under this
Agreement has been made under such officer's supervision and (b) to
the best of such officer's knowledge, based on such review, the
servicer has fulfilled all of its obligations under this Agreement in
all material respects throughout the then most-recently ended calendar
year or, if there has been a failure to fulfill any such obligation in
any material respect, specifying each such failure known to such
officer and the nature and status thereof.
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(v) Xxxxxxxx-Xxxxx Back-Up Certification. Not later than the
fifth Business Day prior to the date when the Primary Servicer is required
to deliver such backup certification under the Pooling and Servicing
Agreement, the Primary Servicer shall execute and deliver to the Master
Servicer a backup certification, which shall be substantially in the form
attached as Exhibit CC-1 to the Pooling and Servicing Agreement in support
of any certification obligation to which the Master Servicer, the depositor
for the ABS Issuing Entity, the trustee for the ABS Issuing Entity, the
master servicer for the ABS Issuing Entity (if other than the Master
Servicer) or other similar party is subject under the governing agreement
for the ABS Issuing Entity in connection with the certification
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and Rule 302 of
the Regulations with respect to the mortgage loans serviced by the Primary
Servicer under this Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by the
Primary Servicer shall appear under a cover substantially in the form attached
hereto as Exhibit E. Each report, certification and statement that is delivered
or rendered by the Primary Servicer itself shall be signed by an officer of the
Primary Servicer responsible for reviewing the activities performed by the
Primary Servicer under this Agreement. Each report delivered by the Primary
Servicer that contains Primary Servicer Form 8-K Reporting Information, Primary
Servicer Form 10-D Reporting Information or Primary Servicer Form 10-K Reporting
Information shall appear in the same form that a Form 8-K, Form 10-D or Form
10-K is required to appear under the Regulations, except that such report shall:
(i) omit the cover page that would be required under the
applicable form under the Regulations (but the report shall nonetheless
appear under a cover substantially in the form attached hereto as Exhibit
E, as contemplated above); and
(ii) omit to comply with the signature requirements that would
apply under the applicable form under the Regulations (but the report shall
nonetheless be signed by an officer of the Primary Servicer responsible for
reviewing the activities performed by the Primary Servicer under this
Agreement, as contemplated above, and shall contain a statement to the
effect that the report is submitted in connection with the reporting
obligations associated with the ABS Issuing Entity under the Exchange Act).
In no event shall any statement or legend (whether such statement
or legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Master Servicer or the
Depositor in a report or certification filed with the SEC or otherwise pursuant
to the Regulations. The preceding statement shall not be construed to allow any
limitation on liability that is not otherwise contemplated under this Section.
(f) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans that
are not serviced under this Agreement: (i) the final prospectus supplement
prepared by the Depositor with respect to the offering of the securities issued
by the ABS Issuing Entity and (ii) any reports delivered from time to time by
the Master Servicer, the master servicer for the ABS Issuing Entity (if such
party is not the Master Servicer), the trustee for the ABS Issuing Entity and/or
the paying agent, certificate administrator or other similar party for the ABS
Issuing Entity.
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(g) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Primary Servicer, or any assignment of the obligations of the
Primary Servicer, pursuant to the other provisions of this Agreement, the
Primary Servicer shall remain obligated to comply from time to time with the
reporting and certification obligations that would have been applicable under
subsection (c) in the absence of such resignation, removal, termination or
assignment, but only to the extent related to the time period prior to the
effective date of such resignation, removal termination or assignment. Without
limiting the generality of the preceding statement, if the Primary Servicer
voluntarily assigns its obligations under this Agreement pursuant to the other
provisions of this Agreement (or with the consent of the Master Servicer), then
the successor Primary Servicer shall be obligated to cause the predecessor
Primary Servicer to perform the surviving reporting and certification
obligations set forth above and the failure to do so will constitute an "event
of default" on the part of the successor Primary Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to the
date of this Agreement. The parties acknowledge that the provisions of this
Section shall not be construed to require the Primary Servicer to sign any Form
8-K, Form 10-D or Form 10-K to be filed with respect to the ABS Issuing Entity
with the SEC (except to the extent, if any, that the Regulations require such
signature).
(i) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an interpretation of
the Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Master Servicer on the other, the
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, shall be conclusive and binding in the absence of manifest
error, and, for the purposes of this Agreement, the Primary Servicer shall be
entitled to rely on any such determination. If the Primary Servicer initiates
legal proceedings asserting an interpretation that differs from any such
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, the Primary Servicer shall comply with such determination of
the Master Servicer unless and until a final, nonappealable judgment is rendered
in connection with such proceedings, in which case such final, nonappealable
judgment shall control. If the Primary Servicer receives notice of
interpretations hereunder from the Master Servicer that conflict with each
other, the Primary Servicer shall promptly notify the Master Servicer, in which
case the Primary Servicer shall comply with the interpretation described in the
applicable written notice from the Master Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any contrary
provisions set forth in this Agreement, if the SEC or its staff issues any
order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the Applicable
Depositor and/or its affiliates or specifically to the applicable ABS Issuing
Entity, then, subject to the immediately succeeding sentence, the Primary
Servicer shall comply with such order, no-action letter or staff interpretation
insofar as such order, no-action letter or staff interpretation, or the
interpretations reflected therein, does or would (if implemented) affect the
reporting and certification obligations of the Primary Servicer hereunder. The
compliance obligation otherwise described in the preceding sentence shall not be
required unless there shall have been delivered to the Primary Servicer a notice
of such order, no-action letter or staff interpretation, which notice attaches a
copy of the applicable order, no-action letter or staff interpretation or
relevant excerpts thereof.
(k) [Reserved.]
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(l) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 5.13 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Primary Servicer to delegate its obligations under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the Exchange
Act or the Regulations are amended to impose additional or more stringent
reporting and/or certification obligations with respect to the ABS Issuing
Entity, which additional or more stringent reporting and/or certification
obligations are not otherwise effective pursuant to the other provisions of this
Agreement, the parties hereto shall negotiate in good faith for an amendment to
this Section 5.13 to result in compliance with such law or regulation as so
amended. In the event that the Securities Act, the Exchange Act or the
Regulations are amended to reduce reporting and/or certification obligations
with respect to the ABS Issuing Entity, the parties hereto shall negotiate in
good faith for an amendment to this Section 5.13 to result in compliance with
such law or regulation as so amended.
ARTICLE VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
SECTION 6.1 PRIMARY SERVICER DEFAULT Each of the following events
shall constitute a "Primary Servicer Default" hereunder:
(a) any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement;
or
(b) except in the case of Section 6.1(c), any failure by the
Primary Servicer duly to observe or perform in any material respect any of
the covenants or agreements on the part of the Primary Servicer contained
in this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such failure and the
Certificateholders, holders of any B Note and holders of any Serviced
Companion Mortgage Loan shall not be materially and adversely affected
thereby, such cure period may be extended to the extent necessary to permit
the Primary Servicer to cure such failure; provided, however, that such
cure period may not exceed sixty (60) days; and provided, further, that if
such failure to observe or perform on the part of the Primary Servicer
would result in an Event of Default (or an event that with notice or the
passage of time would constitute such an Event of Default) by the Master
Servicer under the Pooling and Servicing Agreement or the applicable A/B
Intercreditor Agreement or the applicable Loan Pair Intercreditor
Agreement, then the cure periods described in this Section 6.1(b) shall not
apply; or
(c) any breach of the representations and warranties made
pursuant to Section 2.4(b) hereof or any failure by the Primary Servicer to
comply with one or more provisions of Section 5.13 or clause (d) of Article
VII; provided, however, that all of the following provisions shall apply:
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(A) to the extent the Master Servicer determines, in its
reasonable discretion, following consultation with the Applicable
Depositor, that the Primary Servicer is in good faith attempting to
remedy such failure and no Certification Party will be materially and
adversely affected by giving the Primary Servicer an opportunity to
cure such failure, the Master Servicer may, following consultation
with the Applicable Depositor, give the Primary Servicer such
opportunity;
(B) the period of time to cure such failure may not exceed
three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would result in either
failure by the Master Servicer (or the master servicer in an Other
Securitization) to submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor (or another
Applicable Depositor) to submit to the SEC, timely, complete and
accurate reports of the type described in Article XIII of the Pooling
and Servicing Agreement;
(D) unless the Master Servicer otherwise consents, the cure
period described in this Section 6.1(c) shall end on the earlier of
(I) the date on which the Master Servicer has delivered (or would be
required to deliver) a report or certification to the Applicable
Depositor or to the SEC, which report is or would be inaccurate,
incomplete or unable to be rendered as a result of such failure of the
Primary Servicer and (II) the date on which the Applicable Depositor
has delivered (or would be required to deliver) a report or
certification to the SEC, which report is or would be inaccurate,
incomplete or unable to be rendered as a result of such failure of the
Primary Servicer; and
(E) if, following the Primary Servicer's failure to comply
with any of its obligations under Section 5.13(c)(i), 5.13(c)(ii),
5.13(c)(iii), 5.13(c)(iv)(A), 5.13(c)(iv)(B) or 5.13(c)(iv)(C) hereof
on or prior to the dates by which such obligations are to be performed
pursuant to, and as set forth in, such Sections, (x) the Primary
Servicer subsequently complies with such obligations before the Master
Servicer gives written notice to the Primary Servicer that it is
terminated in accordance with this Section 6.1(c) and Section 6.2, (y)
the Primary Servicer's failure to comply does not cause termination of
the Master Servicer under Section 8.28(a)(xi) and Section 8.29 of the
Pooling and Servicing Agreement, (z) the Primary Servicer's failure to
comply does not cause the Paying Agent to fail in its obligations to
timely file the related Form 8-K, Form 10-D or Form 10-K, as the case
may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or
10-K Filing Deadline, then such failure of the Primary Servicer to so
comply shall cease to be a Primary Servicer Default under this Section
6.1(c) on the date on which such Form 8-K, Form 10-D or Form 10-K is
so filed; or
(d) any breach of the representations and warranties made
pursuant to Section 2.4(a) hereof that materially and adversely affects the
interest of the Master Servicer and that continues unremedied for a period
of twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such breach and the
Certificateholders, holders of any B Note and holders of any Serviced
Companion Mortgage Loan shall not be materially and adversely affected
thereby, such cure period may be extended to the extent necessary to permit
the Primary Servicer to cure such breach; provided, however, that such cure
period may not exceed sixty (60) days; and provided, further, that if such
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failure to perform on the part of the Primary Servicer results in an Event
of Default (or an event that with notice or the passage of time would
constitute such an Event of Default) by the Master Servicer under the
Pooling and Servicing Agreement or applicable A/B Intercreditor Agreement
or applicable Loan Pair Intercreditor Agreement, then the cure periods
described in this Section 6.1(c) shall not apply; or
(e) any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
(f) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(g) the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
(h) the Primary Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization
statute, make an assignment for the benefit of its creditors, voluntarily
suspend payment of its obligations, or take any corporate action in
furtherance of the foregoing; or
(i) any other event caused by the Primary Servicer which creates
an Event of Default (or an event that with notice or the passage time would
constitute or result in such an Event of Default) of the Master Servicer
under the Pooling and Servicing Agreement or under an A/B Intercreditor
Agreement or a Loan Pair Intercreditor Agreement;
(j) if Primary Servicer becomes or serves as Master Servicer at
any time, any failure by the Primary Servicer duly to observe or perform in
any material respect any of the covenants or agreements of Master Servicer
under the Pooling and Servicing Agreement or under an A/B Intercreditor
Agreement or a Loan Pair Intercreditor Agreement, which failure continues
unremedied beyond the expiration of applicable cure periods; or
(k) the Primary Servicer shall fail to terminate any Sub-Servicer
appointed by it if that Sub-Servicer was required to be terminated subject
to, and in accordance with, Section 8.4(c) of the Pooling and Servicing
Agreement; provided that the Depositor may waive any such Event of Default
under this clause (k) in its sole discretion if it also waived any
corresponding default on the part of the Master Servicer arising under the
Pooling and Servicing Agreement from such circumstance.
Primary Servicer agrees to give prompt written notice to the Master
Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Primary Servicer Default.
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SECTION 6.2 TERMINATION (a) The obligations and responsibilities of
the Primary Servicer as created hereby (other than as expressly provided herein)
shall terminate upon the earliest to occur of (i) the receipt by the Primary
Servicer of the Master Servicer's written notice of such termination delivered
at the Master Servicer's option following the occurrence of a Primary Servicer
Default other than as described in Section 6.1(c), (ii) the occurrence of a
Primary Servicer Default described in Section 6.1(c) and (iii) the later of the
final payment or other liquidation of the last (x) Mortgage Loan, (y) A/B
Mortgage Loan or (z) Loan Pair (the "Primary Servicing Termination Date"). From
and after the Primary Servicing Termination Date, the Primary Servicer shall, if
applicable, continue to cooperate in the transfer of primary servicing,
including the delivery of files and transfer of accounts as contemplated hereby
but shall have no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement, the Pooling and
Servicing Agreement, each A/B Intercreditor Agreement and each Loan Pair
Intercreditor Agreement may be assumed by a successor Master Servicer or the
Trustee upon a termination of the Master Servicer's servicing rights pursuant to
the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm to
Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
(b) The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder shall survive the Primary Servicing Termination Date, but
only to the extent such reimbursement relates to a period prior to the
termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Master Servicer to terminate Primary Servicer upon
the occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
SECTION 6.3 POST-TERMINATION OBLIGATIONS (a) In the event of a
termination of primary servicing due to a Primary Servicer Default, the Primary
Servicer shall promptly deliver the Primary Servicer Servicing Documents as
directed by the Master Servicer and remit to the Master Servicer, by wire
transfer of immediately available funds, all cash held by the Primary Servicer
with respect to the related Mortgage Loans, A/B Mortgage Loans and Loan Pairs,
and shall, if so requested by the Master Servicer, assign to the Master Servicer
or a Successor Primary Servicer, as directed by the Master Servicer, and in such
event the Master Servicer shall assume, or cause the Successor Primary Servicer
to assume, all service contracts related to the Mortgage Loans, the A/B Mortgage
Loans and the Loan Pairs transferred thereon but only to the extent such
contracts are assignable and the required consents (if any)
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to such assignments have been obtained. The Primary Servicer shall use all
reasonable efforts to obtain the consents required to effect such assignments.
(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan, any A/B Mortgage Loan and any Loan Pair which are received by the Primary
Servicer.
(c) The Primary Servicer shall provide to the Master Servicer promptly
(but in no event later than ten (10) Business Days) after the Primary Servicing
Termination Date the following information, in each case as of such date: (a) a
ledger accounting itemizing the dates and amounts of all payments made, received
or applied by the Primary Servicer with regard to each Mortgage Loan, each A/B
Mortgage Loan and each Loan Pair, further itemizing principal and interest
payments, tax payments, special assessments, hazard insurance, mortgage
insurance premiums, ground rents, if any, and all other payments and (b) a
current trial balance for each such Mortgage Loan, A/B Mortgage Loan and Loan
Pair.
(d) On a date to be agreed upon by the Primary Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the Primary Servicer shall commence and continue diligently to
completion at its own expense, to notify Mortgagors under the related Mortgage
Loans, A/B Mortgage Loans and Loan Pairs of the address to which payments on
such Mortgage Loans, A/B Mortgage Loans and Loan Pairs should be sent after the
Primary Servicing Termination Date; provided, however, that in any event,
Primary Servicer shall be obligated to notify Mortgagors within seven (7)
Business Days of the Primary Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan, any A/B Mortgage Loan and any Loan Pair which is
received by the Primary Servicer after the Primary Servicing Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans, A/B Mortgage Loans and Loan
Pairs and shall forward to the Master Servicer and any Successor Primary
Servicer such documents as it may receive from time to time regarding any
Mortgage Loan, A/B Mortgage Loan or Loan Pair transferred and provide such other
assistance as may reasonably be required by the Master Servicer or any Successor
Primary Servicer regarding such transfer.
(g) The Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans, A/B Mortgage Loans and Loan Pairs
accrued through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
SECTION 6.4 ADDITIONAL TERMINATION Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
individual Mortgage Loan, A/B Mortgage Loan or Loan Pair (that is, this
Agreement shall terminate with respect to an individual Mortgage Loan and the
related B Note (if any) and the related Serviced Companion Mortgage Loan (if
any)) upon the earlier to occur of the following: (i) such Mortgage Loan, A/B
Mortgage or Loan Pair, as the case may be, become a Specially Serviced Mortgage
Loan or REO Mortgage Loan and (ii) both (a) the related Mortgage Loan (that is,
in connection with a B Note or Serviced Companion Mortgage Loan, the Mortgage
Loan related to such B Note or Serviced Companion Mortgage Loan) is sold or
otherwise disposed of by or on behalf of
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the Trust and (b) such Mortgage Loan, the related B Note (if any) and the
related Serviced Companion Mortgage Loan (if any) are no longer serviced and
administered under the Pooling and Servicing Agreement. For the purposes of the
foregoing, the transformation of a Mortgage Loan, A/B Mortgage Loan or Loan Pair
into a Defeasance Loan shall not by itself constitute a sale or disposition of
such mortgage loan. In the event of such termination, the Primary Servicer shall
comply with Section 6.3 as if a Primary Servicer Default had occurred, except
that such Section shall be construed to relate only to such Mortgage Loan, A/B
Mortgage Loan or Loan Pair and references therein to Primary Servicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Primary Servicer shall cooperate in the orderly transfer of the
servicing of such Mortgage Loan, A/B Mortgage Loan or Loan Pair and shall
forward to the Master Servicer such documents as it may receive from time to
time with respect thereto and provide such other assistance as may reasonably be
required by the Master Servicer with respect thereto. Primary Servicer shall be
entitled to all fees, compensation, interest and earnings on such Mortgage Loan,
A/B Mortgage Loan or Loan Pair accrued through the date of termination of its
obligations and rights with respect to such Mortgage Loan, A/B Mortgage Loan or
Loan Pair under this Agreement; provided, however, Primary Servicer shall
continue to collect the Excess Servicing Fee after termination in accordance
with the terms of this Agreement and the Pooling and Servicing Agreement. If
such Mortgage Loan, A/B Mortgage Loan or Loan Pair subsequently becomes a
Rehabilitated Mortgage Loan, then the Primary Servicer shall promptly resume the
servicing of such Mortgage Loan, A/B Mortgage Loan or Loan Pair in accordance
with the terms hereof.
ARTICLE VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in the
case of material subcontracts and without prior notice to or the prior written
consent of the Master Servicer in the case of non-material subcontracts, the
Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans, A/B Mortgage
Loans and Loan Pairs; provided, however, that (a) the Primary Servicer shall
remain fully liable at all times for the performance of all Services and for all
other obligations hereunder; (b) in no event shall any such subcontractors make
any of the decisions, be given discretion to make any decisions, or have any
authority to make any decisions, required as part of a Category 1 Request or
Category 2 Request or any decision or recommendation involving the exercise of
the Primary Servicer's discretion as a "lender" under any of the Loan Documents
for the Mortgage Loans, the A/B Mortgage Loans and the Loan Pairs; (c) the
Primary Servicer shall maintain and perform policies and procedures to monitor
such subcontractors' performance of the services for which they are employed;
and (d)(i) the Primary Servicer shall not, for so long as any ABS Issuing Entity
is subject to the reporting requirements of the Exchange Act, engage any
"Subcontractor" (as defined in the Pooling and Servicing Agreement) after the
Closing Date without the Master Servicer's and the Depositor's prior written
consent, which, in either case, shall not be unreasonably withheld and (ii) the
Primary Servicer shall, with respect to each such Subcontractor with which it
has entered into a servicing relationship with respect to the Mortgage Loans
after the Closing Date, (A) include in a written agreement between the Primary
Servicer and such Subcontractor provisions analogous to those of Section 5.13
hereof, Section 6.1(c) hereof, Section 2.4(b) hereof, this clause (d) of this
Article VII, the last sentence of Section 10.11 hereof, the last sentence of
Section 10.13 hereof and the last sentence of Section 13.12 of the Pooling and
Servicing Agreement and (B) use reasonable efforts to cause such Subcontractor
to comply with the report delivery, indemnification and contribution obligations
set forth in such analogous provisions.
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ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans, the A/B Mortgage Loans and
the Loan Pairs held by the Primary Servicer, including but not limited to the
Primary Servicer Servicing Documents, mortgage servicing documents, books,
computer tapes and other documents and records (except for microfilm records) as
well as any reproductions or copies of such records furnished for the purposes
of performing Services from the Cut-off Date are, and shall continue at all
times to be, held by the Primary Servicer for the benefit of the Master Servicer
and for the Trustee and shall not be released, disseminated or otherwise made
available to third parties without the prior written consent of the Master
Servicer.
ARTICLE IX.
INDEMNIFICATION
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY (a) The Primary Servicer
shall indemnify the Master Servicer, its officers, employees and agents against,
and hold the Master Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the Master
Servicer arising out of or related to (i) a negligent or willful failure of the
Primary Servicer or any Person hired by the Primary Servicer to perform properly
any of the Services to be performed by the Primary Servicer pursuant to the
Payment and Collection Description, the Payment and Mortgage Loan Status
Reports, Post Closing Matters Description and Task Description, (ii) any failure
by the Primary Servicer to perform its obligations under this Agreement, or
(iii) breach of any of the Primary Servicer's representations and warranties
hereunder; provided, however, that the Primary Servicer shall not be required to
indemnify the Master Servicer, its officers, employees or agents against or hold
the Master Servicer, its officers, employees or agents harmless from any losses
to the extent that such loss is caused by the actions of the Master Servicer,
its officers, employees or agents in violation of the Master Servicer's duties
under this Agreement, under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement or under a Loan Pair Intercreditor Agreement (except to
the extent that such failure was caused by the Primary Servicer's failure to
perform its obligations hereunder). The indemnification provided under this
Section 9.1 shall survive the Primary Servicing Termination Date. The Master
Servicer shall promptly notify the Primary Servicer if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans, the A/B
Mortgage Loans or the Loan Pairs entitling the Master Servicer to
indemnification hereunder. The Primary Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Master Servicer) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Primary Servicer
shall not affect any of the Master Servicer's rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, any holder of a B Note, any
holder of a Serviced Companion Mortgage Loan, the Depositor, the Trustee or any
other Person for any action taken or for refraining from the taking of any
action in good faith and using its reasonable business judgment pursuant to this
Agreement, or for errors in judgment; provided that this provision shall not
protect the Primary Servicer or any such person against any breach of a
covenant, representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of reckless disregard for
its obligations and duties under this Agreement. The Primary Servicer and any
director, officer, employee or agent of the Primary Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
SECTION 9.2 MASTER SERVICER'S INDEMNITY The Master Servicer shall
indemnify the Primary Servicer, its officers, employees and agents against, and
hold the Primary Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the
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Primary Servicer, to the extent arising out of, or related to reliance by the
Primary Servicer on, (i) pursuant to Section 5.13(i), an interpretation of the
Securities Act, the Exchange Act or the Regulations set forth in a written
notice from the Master Servicer to the Primary Servicer or (ii) any incorrect
asset pool balance supplied by the Master Servicer with respect to the TOP29
Trust, if such incorrect balance is the cause of any incorrect determination by
the Primary Servicer that an obligor on a Mortgage Loan is not a Significant
Obligor. The indemnification provided under this Section 9.2 shall survive the
Primary Servicing Termination Date.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 SEVERABILITY If any term, covenant, condition or
provision hereof is unlawful, invalid, or unenforceable for any reasons
whatsoever, and such illegality, invalidity, or unenforceability does not affect
remaining part of this Agreement, then all such remaining parts hereof shall be
valid and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a waiver or amendment of that or any other
such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
stop or preclude such party from exercising any such right or constitute a
suspension or any waiver of any such right.
SECTION 10.3 HEADINGS The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
SECTION 10.4 CONSTRUCTION Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. This Agreement is the result
of arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
SECTION 10.5 ASSIGNMENT (a) This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective permitted successors and assigns. This Agreement
and the rights and benefits hereunder of the Primary Servicer shall not be
assignable, and the duties and obligations hereunder of such party shall not be
delegable, except that in the following instances, Primary Servicer may assign,
sell or transfer its rights under this Agreement without the consent of (but
upon written notice to) the Master Servicer:
(i) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to a parent
company of Primary Servicer or a wholly-owned subsidiary or Affiliate of
such party, or a successor by merger or as the result of a demutualization
of a parent company of Primary Servicer, as long as such successor has net
assets and net worth equal to or greater than the net assets and net worth
of the Primary Servicer.
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(ii) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to an entity
that then serves as a primary servicer for other mortgage loans held by the
Trust at the time of such assignment, sale or transfer.
(iii) With the prior written consent of the Master Servicer and
the Depositor which consent shall not be unreasonably withheld or delayed,
Primary Servicer may assign, sell or transfer its rights and obligations
under this Agreement (in whole and not in part) to any master or primary
servicer, if (1) such entity is either (a) rated by the Rating Agencies as
satisfactory or its equivalent in such capacity or (b) approved by the
Special Servicer and Operating Advisor (in addition to Master Servicer as
provided above), which approval shall not be unreasonably withheld or
delayed, and (2) Primary Servicer at its sole cost receives Rating Agency
Confirmation from the Rating Agencies prior to such assignment, sale or
transfer.
(iv) Primary Servicer may subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to
the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be
effective until such Successor Primary Servicer enters into a written agreement
reasonably satisfactory to the Master Servicer and the Depositor 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 Primary
Servicer of any duties or liabilities arising or incurred prior to such
assignment. Any costs or expenses incurred in connection with such assignment
shall be payable by the assigning Primary Servicer. Any assignment or delegation
or attempted assignment or delegation in contravention of this Agreement shall
be null and void. The proceeds of any assignment, sale or transfer permitted
under this Section 10.5 or to which consent was granted shall belong solely to
the assignor of such rights, and Master Servicer shall have no claim to them.
(b) Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary 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. Any such determination permitting the resignation
of the Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer shall
have assumed the Primary Servicer's responsibilities and obligations under this
Agreement, and Special Servicer and Operating Advisor shall have consented to
such successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Master Servicer of
Primary Servicer's responsibilities and obligations under this Agreement
pursuant to this Section 10.6(a) shall not require the consent of Special
Servicer or Operating Advisor.
(c) The Primary Servicer may resign from the obligations and duties
imposed on it, upon 60 days' notice to the Master Servicer, provided that (i)
the Primary Servicer bears all costs associated with its resignation and the
transfer of servicing; (ii) Primary Servicer designates a successor servicer to
assume Primary Servicer's responsibilities and obligations under this Agreement;
(iii) Master Servicer, Special Servicer and Operating Advisor shall consent to
such successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the designation and assumption by Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this Section
10.6(b) shall not require the consent of Special Servicer or Operating Advisor.
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(d) In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of resignation
under subsections (a) or (b) above, as the case may be.
SECTION 10.6 PRIOR UNDERSTANDINGS This Agreement supersedes any and
all prior discussions and agreements between or among the Seller, the Primary
Servicer and the Master Servicer with respect to the Servicing of the Mortgage
Loans, the A/B Mortgage Loans and the Loan Pairs and the other matters contained
herein. This Agreement, together with the Pooling and Servicing Agreement, each
A/B Intercreditor Agreement and each Loan Pair Intercreditor Agreement, contain
the sole and entire understanding between the parties hereto with respect to the
transactions contemplated herein. Every effort shall be made to construe this
Agreement, the Pooling and Servicing Agreement, each A/B Intercreditor Agreement
and each Loan Pair Intercreditor Agreement consistently. If a conflict exists
between such agreements, then the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement
shall control, and with respect to a Loan Pair, the applicable Loan Pair
Intercreditor Agreement shall control. If this Agreement requires Primary
Servicer to perform a task or duty, the details and obligations of which are (a)
set forth in this Agreement and (b)(i) are not set forth in the Pooling and
Servicing Agreement or with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, or with respect to a Loan Pair, the applicable Loan
Pair Intercreditor Agreement or (ii) are set forth in the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, and with respect to a Loan Pair, the applicable Loan
Pair Intercreditor Agreement, only in general terms, then Primary Servicer shall
perform such task and duties in accordance with the details and obligations set
forth in this Agreement. If this Agreement requires Primary Servicer to perform
a task or duty, the details and obligations of which are not set forth in this
Agreement but are contained in the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement, and
with respect to a Loan Pair, the applicable Loan Pair Intercreditor Agreement,
then the Primary Servicer shall perform such task and duties in accordance with
the Pooling and Servicing Agreement.
SECTION 10.7 INTEGRATED AGREEMENT This Agreement constitutes the final
complete expression of the intent and understanding of the Primary Servicer and
the Master Servicer and may not be altered or modified except by a subsequent
writing, signed by the Primary Servicer and the Master Servicer.
SECTION 10.8 COUNTERPARTS This Agreement may be executed in any number
of counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
SECTION 10.9 GOVERNING LAWS This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of law principles, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10.10 NOTICES Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally or by
facsimile or (b) on the second following Business Day, if sent by overnight mail
or overnight courier, in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice);
If to the Master Servicer: As set forth in Section 14.5 of the
Pooling and Servicing Agreement
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If to the Primary Servicer: Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx,
Managing Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
SECTION 10.11 AMENDMENT In the event that the Pooling and Servicing
Agreement, an A/B Intercreditor Agreement or a Loan Pair Intercreditor Agreement
is amended, this Agreement shall be deemed to have been amended and to the
extent necessary to reflect such amendment to the Pooling and Servicing
Agreement, such A/B Intercreditor Agreement or such Loan Pair Intercreditor
Agreement, but no such amendment to the Pooling and Servicing Agreement, A/B
Intercreditor Agreement or Loan Pair Intercreditor Agreement or deemed amendment
to this Agreement shall increase the obligations or decrease the rights of
Primary Servicer under this Agreement without its express written consent which
consent shall not be unreasonably withheld or delayed. For so long as any ABS
Issuing Entity is subject to the reporting requirements of the Exchange Act, the
parties hereto may not amend or modify any provision of Section 5.13, Section
6.1(c), Section 2.4(b), clause (d) of Article VII, the last sentence of Section
10.13, or this sentence without the applicable Depositor's prior written
consent.
Notwithstanding anything to the contrary contained in this Section
10.11, the parties hereto agree that this Agreement may be amended pursuant to
Section 5.11 herein without any notice to or consent of any of the
Certificateholders, any B Note holder, any holder of a Serviced Companion
Mortgage Loan, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
SECTION 10.12 OTHER This Agreement shall not be construed to grant to
any party hereto any claim, right or interest in, to or against the trust fund
created pursuant to the Pooling and Servicing Agreement or any assets of such
trust fund.
SECTION 10.13 BENEFITS OF AGREEMENT Nothing in this Agreement, express
or implied, shall be construed to grant to any Mortgagor or other Person, other
than the parties to this Agreement and the parties to the Pooling and Servicing
Agreement, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement, except that the Depositor, any other Applicable Depositor
and any master servicer for an ABS Issuing Entity other than the TOP29 Trust are
intended third-party beneficiaries of Section 5.13 and Section 6.1.
[END OF PAGE]
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto by an authorized representative, all as of the day and
year first above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant General Counsel
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant General Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULE
MSCI 2008 TOP29 MORTGAGE LOAN SCHEDULE
AGGREGATE LOAN SCHEDULE
MORTGAGE LOAN CUT-OFF DATE
MORTGAGE LOAN NO SELLER PROPERTY NAME BALANCE PRIMARY FEE
--------------------------------------------------------------------------------------------------------------
1 PCFII Kimco Portfolio: Xxxxx Village $24,865,346 1.000
1 PCFII Kimco Portfolio: Chatham Plaza $23,823,726 1.000
1 PCFII Kimco Portfolio: Chico Crossroads $20,298,242 1.000
1 PCFII Kimco Portfolio: Mallside Shopping Center $12,178,945 1.000
1 PCFII Kimco Portfolio: Xxxxx Plaza $11,431,115 1.000
1 PCFII Kimco Portfolio: Park Place $11,057,200 1.000
1 PCFII Kimco Portfolio: Gold Country Center $ 5,715,558 1.000
1 PCFII Kimco Portfolio: Tyler Street Plaza-Riverside $ 5,501,892 1.000
Kimco Portfolio: Xxxxxxxxx Xxxx Xxxxxxxx
0 XXXXX Xxxxxx $ 5,127,977 1.000
4 PCFII Cabin Xxxx Mall & Shopping Center $67,000,000 1.000
5 PCFII GE Healthcare Facility $65,250,000 1.000
7 PCFII Hilton - Indianapolis $50,720,000 1.000
8 PCFII Arena Hub Shopping Center $34,961,449 1.000
00 XXXXX Xxxxxxx Xxxxx $22,900,000 1.000
13 PCFII 65 Infanteria Shopping Center $22,820,000 1.000
14 PCFII Rock Creek Village $22,300,000 1.000
16 PCFII Reparto Metropolitano $21,770,000 1.000
00 XXXXX Xxxxx at the Mall of Georgia Phase II $20,750,000 1.000
19 PCFII Scottsdale Retail Center $18,700,000 1.000
20 PCFII Harbour Village $18,000,000 1.000
00 XXXXX Xxxxx Xxxxxx Xxxxxxxx Xxxxxx $17,990,000 1.000
00 XXXXX Xxxxxxxx Xxxxxxxx Xxxxx $14,987,567 1.000
26 PCFII The Shoppes at Celebrate Virginia $14,975,071 1.000
00 XXXXX Xxxxx at the Mall of Georgia Phase I $13,850,000 1.000
00 XXXXX Xxxxx Xxxxxx Commons $10,281,504 1.000
00 XXXXX Xxxxxxxx Xxxxxx $ 9,750,000 1.000
41 PCFII 000 Xxxxxx Xxxxxxx Xxxxxxxxx $ 6,590,558 1.000
44 PCFII Shoppes at School House Crossing $ 6,400,000 1.000
49 PCFII 15622-60 and 00000-00 Xxxxx Xxxxxxx $ 5,496,209 1.000
50 PCFII 00000 Xxxxx Xxxxxxx Xxxxx $ 5,371,443 1.000
62 PCFII 000-000 Xxxx Xxxxxx $ 3,297,421 6.000
64 PCFII Tanglewood Apartments $ 3,283,995 1.000
00 XXXXX Xxxxxxxx Xxxxx $ 3,247,662 6.000
66 PCFII Poplar Hill Shopping Center $ 3,197,724 1.000
00 XXXXX Xxxxxxx xx Xxxxxxxxxx Xxxxxxx $ 3,095,502 1.000
75 PCFII 0000 Xxxxx Xxxxxxxx Xxxxxxxxx $ 2,386,226 1.000
76 PCFII 5304 & 0000 Xxxx Xxxxxx Xxxxxx $ 2,350,000 1.000
78 PCFII Xxxxx Crossing Phase I $ 1,997,211 6.000
SCHEDULE II
[RESERVED]
EXHIBIT A
POOLING AND SERVICING AGREEMENT
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-2
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon Classification
EXHIBIT B-2(a)
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
When Primary Servicer receives a request from a Mortgagor or other
obligor under the Mortgage Loan, A/B Mortgage Loan or Loan Pair, as applicable,
for action ("Post Closing Request") on its related Mortgage Loan, A/B Mortgage
Loan or Loan Pair, Primary Servicer shall classify each Post Closing Request
into one of the following three (3) categories:
o Post Closing Requests over which Primary Servicer shall have decision
making authority to analyze, consent to, approve and process such
requests, subject to consent rights in certain circumstances set forth
in Exhibit B-2(c) below and, where applicable, Deemed Category 1
Requests ("Category 1 Requests");
o Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information together
with a written analysis and recommendation for the consent and
approval of such requests to the Master Servicer or Special Servicer,
as applicable; other than Deemed Category 1 Requests ("Category 2
Requests"); and
o Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be
classified into one of the three (3) categories specified above and the
materials that follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance
with the Servicing Standard, the terms of this Agreement, the Pooling and
Servicing Agreement and with respect to any A/B Mortgage Loan, its applicable
A/B Intercreditor Agreement, and with respect to any Loan Pair, its applicable
Loan Pair Intercreditor Agreement and the REMIC Provisions, while providing
responsive service to Mortgagors.
The attached chart does not address Payment and Collection
Description, Payment and Collection Reporting or Property Inspection
Description, which is covered elsewhere in this Agreement.
EXHIBIT B-2(b)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
Category When Applicable Examples Allocation of Fees
------------------------------------------------------------------------------------------------------------------------------------
1 Category 1 Post Closing Request is either Transfer rights contemplated in Loan Primary Servicer collects
Requests (other than (a) specifically authorized in Documents (including without limitation entire administrative or
Deemed Category 1 the related Loan Documents (as assignment and assumption rights); partial processing fee (including
Requests) defined in Exhibit releases contemplated in Loan Documents; without limitation
B-2(c)(A.1(b)), either expressly easements contemplated in Loan Documents; defeasance fees), legal
as a matter of right in favor of evaluation of alterations under specified fees and out-of-pocket
the Mortgagor or upon the threshold; administer, monitor and release expenses and 80% of any
satisfaction of certain of reserve or escrow amounts in accordance additional fees or
specified conditions (including with reserve or escrow agreements; approval portions of fees
the exercise of any specified of leases below threshold specified in Loan (including without
standard of consent or judgment Documents; additional lien, monetary limitation transfer fees)
within such conditions subject encumbrance or mezzanine financing placed payable to Master Servicer
to the terms of this on Mortgaged Property that is specifically under Pooling and
Agreement); or (b) seeks the contemplated in Loan Documents under Servicing Agreement (i.e.
approval of the related specified conditions; or process of transfer fee). Other 20%
Mortgagee under the related Loan defeasing a Mortgage Loan (except of such additional fees
Documents for a Lease and/or the defeasance of a Specially Serviced Mortgage are payable to Master
issuance of an SNDA for a Lease. Loans which shall not be the responsibility Servicer. Special Servicer
of the Primary Servicer) and servicing of would receive any portion
Mortgage Loans and A/B Mortgage Loans that of fees due it under the
have been defeased; approval of a Lease Pooling and Servicing
requiring such approval of Mortgagee under Agreement. Master Servicer
the Loan Documents; or issuance of an SNDA. may also collect its
out-of-pocket expenses
which it shall itemize in
reasonable detail.(1)
2 Category 2 Post Closing Request (other than Consent to easement not contemplated in For all Mortgage Loans,
Requests for all Category 3 Request) is (a) not Loan Documents; partial releases not other than A/B Mortgage
Mortgage Loans (other specifically authorized or is specifically contemplated in Loan Loans: Primary Servicer
than A/B Mortgage Loans) prohibited or not addressed in Documents; or subordinate or mezzanine entitled to one hundred
and Deemed Category 1 the Loan Documents; and (b) not financing not specifically contemplated in percent (100%) of
Requests seeking approval of a Lease Loan Documents. administrative or
requiring such approval of processing fee (to the
Mortgagee under the related Loan extent allowed to the
Documents or issuance of an SNDA. Master Servicer under the
Pooling and Servicing
Agreement). Additional
fees are payable to Master
Servicer and/or Special
Servicer as specified in
Pooling and Servicing
Agreement. Master Servicer
may also collect its
out-of-pocket expenses.(1)
For all A/B Mortgage
Loans: Same allocation of
fees as Category 1
Requests.
Category When Applicable Examples Allocation of Fees
------------------------------------------------------------------------------------------------------------------------------------
3 Category 3 Post Closing Requests to Money Changes to maturity date, interest rate, Primary Servicer not
Requests Terms, Defaulted Mortgage Loans principal balance, amortization term, entitled to fee. Master
or Mortgage Loans upon which a payment amount or frequency; or Servicer or Special
Servicing Transfer Event has any actions to loan in default. Servicer is entitled to
occurred. fees as provided in the
Pooling and Servicing
Agreement.(1)
EXHIBIT B-2(c)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
A. Process for disposition of Post Closing Requests Once Classification is Made.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
1. Category 1 Requests and Deemed Category 1 Requests:
a) If Primary Servicer classifies a Post Closing Request as a Category
1 Request or Deemed Category 1 Request, it shall promptly (but in no event more
than five (5) Business Days after receiving such request) notify Master Servicer
of (a) such request; (b) Primary Servicer's classification of the Post Closing
Request as a Category 1 Request or Deemed Category 1 Request; and (c) Primary
Servicer's Materiality Determination regarding any Category 1 Consent Aspect
involved in such request. Notwithstanding the foregoing, as a result of the
quarterly reconciliation of reserve accounts that Primary Servicer provides to
Master Servicer under this Agreement, Primary Servicer shall have no obligation
(a) except as required under Section 8.18(d) of the Pooling and Servicing
Agreement, to notify or seek the consent of Master Servicer or Special Servicer
(as applicable) of any disbursement made from an escrow or reserve account
pursuant to and in accordance with the terms of such agreement governing such
reserve or escrow or (b) to seek consent of Master Servicer to extend (1) the
time available to a Mortgagor to complete repairs, replacements or improvements
pursuant to an escrow or reserve agreement or (2) the expiration date of any
letters of credit associated with such escrow or reserve, as long as (i) Primary
Servicer promptly notifies Master Servicer in writing of such extension; (ii)
the amount being held pursuant to the applicable escrow or reserve agreement at
the time of the proposed extension is less than $1,000,000.00; (iii) the length
of such extension when added to all other extensions granted after the Closing
Date does not exceed one hundred eighty (180) days; and (iv) any such extension
is in accordance with the terms of this Agreement (including without limitation
the Servicing Standard) and the Pooling and Servicing Agreement and with respect
to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement, and with
respect to a Loan Pair, the applicable Loan Pair Intercreditor Agreement.
b) Primary Servicer shall evaluate the Category 1 Request or Deemed
Category 1 Request and process such request to meet the requirements set forth
in the loan documents for the applicable Mortgage Loan ("Loan Documents") in a
manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, and with respect to a Loan Pair, the applicable Loan
Pair Intercreditor Agreement. Such evaluation and processing may commence, and
continue but may not be completed prior to Primary Servicer's notice to Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request in
accordance with the terms of the Loan Documents, this Agreement and the Pooling
and Servicing Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, and with respect to a Loan Pair, the applicable Loan
Pair Intercreditor Agreement.
c) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1 Requests:
(i) If a Mortgagor requests to defease a Mortgage Loan, A/B
Mortgage Loan or Loan Pair (other than a Specially Serviced
Mortgage Loan) and the Loan Documents for such Mortgage
Loan, A/B Mortgage Loan or Loan Pair expressly provide for
a defeasance, Primary Servicer shall treat such request as
a Category 1 Request but
shall, in addition to the other provisions of this Section
1 of Exhibit B-2(c), seek the prior written consent of
Master Servicer prior to consenting to such defeasance,
which consent shall not be withheld or delayed unreasonably
when Primary Servicer submits to Master Servicer the items
substantially as set forth on Appendix 1 of this Agreement
relating to such defeasance, and any such decision of
Master Servicer shall be in accordance with the terms of
the Loan Documents and the Servicing Standard. Failure of
the Master Servicer to notify the Primary Servicer in
writing of Master Servicer's determination to grant or
withhold such consent, within five (5) Business Days
following the Primary Servicer's delivery of the request
for defeasance described above and the relevant information
collected on such defeasance, shall be deemed to constitute
a grant of such consent.
(ii) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan,
A/B Mortgage Loan or Loan Pair (other than a Specially
Serviced Mortgage Loan) to another Person who shall assume
the Mortgage Loan, A/B Mortgage Loan or Loan Pair and the
Loan Documents expressly permit such assignment and
assumption, subject to any conditions set forth in the Loan
Documents, Primary Servicer may treat such request as a
Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to
consenting to such assignment and assumption in accordance
with the terms of Section 8.7 of the Pooling and Servicing
Agreement (subject to any time periods applicable to
Primary Servicer or Special Servicer for the giving,
granting or deemed granting of such consent contained in
the Pooling and Servicing Agreement) by submitting to
Special Servicer the items substantially as set forth on
Appendix 2 of this Agreement relating to such assignment
and assumption. For the purpose of the foregoing sentence,
the term "expressly permits" shall have the meaning
assigned to it in Section 8.7 of the Pooling and Servicing
Agreement.
(iii) If a Mortgagor requests consent to place an additional
lien, monetary encumbrance or mezzanine financing on the
related Mortgaged Property and the Loan Documents expressly
permit such additional lien, monetary encumbrance or
mezzanine financing, subject to any conditions set forth in
the Loan Documents, Primary Servicer may treat such request
as a Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to
consenting to such additional lien, monetary encumbrance or
mezzanine financing in accordance with the terms of Section
8.7 of the Pooling and Servicing Agreement (subject to any
time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of
such consent contained in the Pooling and Servicing
Agreement) by submitting to Special Servicer the items
substantially as set forth on Appendix 3 of this Agreement
relating to such additional lien, monetary encumbrance or
mezzanine financing. For the purpose of the foregoing
sentence, the term "expressly permits" shall have the
meaning assigned to it in Section 8.7 of the Pooling and
Servicing Agreement.
(iv) If a Mortgagor requests consent to enter into a Lease on
the related Mortgaged Property (and/or the associated
issuance of an SNDA for such Lease), which Lease (a)
requires the consent of the Mortgagee under the related
Loan Documents and (b) qualifies as a Significant Lease,
Primary Servicer may treat such request as a Category 1
Request but shall, in addition to the other provisions of
this Section 1 of
Exhibit B-2(c), seek the prior written consent of Master
Servicer, which consent shall not be withheld or delayed
unreasonably, prior to consenting to or disapproving of
such Significant Lease (and/or the related SNDA) by
submitting to Master Servicer the items substantially as
set forth on Appendix 4 of this Agreement relating to such
Significant Lease (and/or related SNDA). Failure of the
Master Servicer to notify the Primary Servicer in writing
of Master Servicer's determination to grant or withhold
such consent within ten (10) Business Days following the
Primary Servicer's delivery of the request for consent to
the Lease, shall be deemed to constitute a grant of such
consent.
(v) If Primary Servicer makes a Materiality Determination that
a Category 1 Consent Aspect is material, then Primary
Servicer shall treat such request as a Category 1 Request,
but shall, in addition to the other provisions of this
Section A.1 of this Exhibit B-2(c), seek the prior written
consent of Special Servicer prior to consenting to the
applicable Category 1 Request, which consent shall not be
withheld or delayed unreasonably, and any such decision of
Special Servicer shall relate only to the Category 1
Consent Aspect and shall be in accordance with the terms of
the Loan Documents and the Servicing Standard. Failure of
the Special Servicer to notify the Primary Servicer in
writing of Special Servicer's determination to grant or
withhold such consent, within five (5) Business Days
following the Primary Servicer's delivery of the request
for consent to the Category 1 Consent Aspect, shall be
deemed to constitute a grant of such consent.
d) Upon conclusion of the negotiations of the documentation for the
Category 1 Request or Deemed Category 1 Request, Primary Servicer may execute
and deliver the operative documents to be executed to effect the Category 1
Request and take the other actions necessary or appropriate to conclude such
request, in each case in accordance with the terms of this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement, and with respect to a Loan Pair, the
related Loan Pair Intercreditor Agreement.
e) Concurrently with the execution of this Agreement, Master Servicer
shall provide to Primary Servicer a counterpart original of the Power of
Attorney executed by the Trust in favor of the Master Servicer and shall execute
and deliver to Primary Servicer a Power of Attorney attached to this Agreement
as Exhibit C. Primary Servicer shall promptly notify Master Servicer of the
execution and delivery of any document on behalf of the Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall execute
and deliver the documents necessary or appropriate to effect a Category 1
Request or Deemed Category 1 Request. Such request shall not relieve Primary
Servicer of its obligations under this Agreement regarding a Category 1 Request
or Deemed Category 1 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement, and with respect to a Loan Pair, the
related Loan Pair Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
g) Upon completion of each Category 1 Request or Deemed Category 1
Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Master Servicer and Special
Servicer (if its consent was required) and shall accompany such notice with a
brief summary of the Category 1 Request or Deemed Category 1 Request, a brief
summary of Primary Servicer's analysis and decision regarding such request, a
POA Notice (if required) and a
counterpart original or copy of the operative documents executed or received to
effect the Category 1 Request or Deemed Category 1 Request.
h) Notwithstanding the foregoing with the consent of Master Servicer,
Primary Servicer may elect to classify and treat a Post Closing Request that
otherwise qualifies as a Category 1 Request or Deemed Category 1 Request, as a
Category 2 Request instead. In such case, Primary Servicer shall adhere to the
provisions of this Agreement regarding Category 2 Requests or Deemed Category 1
Requests, and all aspects of such request (including without limitation the
allocation of fees) shall be governed by the terms of this Agreement covering
Category 2 Requests. Primary Servicer's decision in any one instance to treat a
Post Closing Request that otherwise qualifies as a Category 1 Request or Deemed
Category 1 Request, as a Category 2 Request instead, shall not compromise or
affect its right on any other occasion to treat a similar request as a Category
1 Request or Deemed Category 1 Request.
i) Notwithstanding anything to the contrary in this Section 1, if a
Category 1 Request or Deemed Category 1 Request involves an action requiring the
consent of Special Servicer under the Pooling and Servicing Agreement, Primary
Servicer shall not be permitted to take any such actions without the consent of
Special Servicer in accordance with the Pooling and Servicing Agreement. For any
action relating to an A/B Mortgage Loan or a Loan Pair requiring the consent of,
or consultation with, the holder of the related B Note and holders of the
related Serviced Companion Mortgage Loans under the Pooling and Servicing
Agreement, the related A/B Intercreditor Agreement and/or related Loan Pair
Intercreditor Agreement, Primary Servicer shall have the responsibility to seek
such consent or engage in consultation, unless the Special Servicer is required
to do so under the Pooling and Servicing Agreement. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 1 Requests or Deemed Category 1 Requests as set forth above.
2. Category 2 Requests (other than Deemed Category 1 Requests):
a) If Primary Servicer classifies a Post Closing Request as a Category
2 Request, it shall promptly (but in no event more than five (5) Business Days
after Primary Servicer's receiving such request) notify Master Servicer of
receiving such request, of the type of request and of Primary Servicer's
classification of the Post Closing Request as a Category 2 Request. As part of
such notice, Primary Servicer shall include the following:
(i) If such type of request has not previously been the subject
of a Category 2 Request or a Requirements List (as defined
below) has not previously been provided to Primary
Servicer, then Primary Servicer shall request from Master
Servicer a detailed list of the requirements to be
satisfied for such request (the "Requirements List").
Master Servicer shall promptly (but in no event more than
five (5) Business Days after receiving notification of such
request) provide to Primary Servicer a Requirements List
for such request.
(ii) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer
shall submit the existing Requirements List to Master
Servicer. Primary Servicer may use such Requirements List
for such request unless Master Servicer provides to Primary
Servicer a replacement Requirements List within five (5)
Business Days of such notice.
b) A Requirements List (i) shall in no event be more burdensome than
that required by Master Servicer of other loans in the Trust for similar Post
Closing Requests; (ii) shall not require Primary Servicer to incur additional
third party costs or expenses; and (iii) shall require the gathering,
collection and assembling of information only and not the preparation,
evaluation, analysis of information or a recommendation regarding the Post
Closing Request.
c) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall provide to Master Servicer all of the assembled
items, a list of the items collected from the Requirements List, a list of any
items not collected, any reasons why such items were not collected, a written
analysis of the Category 2 Request in light of the items collected in a form
reasonably satisfactory to Master Servicer, a recommendation whether to approve
or disapprove such request and the appropriate division of the applicable fees
in accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
d) Master Servicer shall use its reasonable best efforts to notify
Primary Servicer with a consent or disapproval of the Category 2 Request within
ten (10) Business Days of receiving such assembled items, analysis and
recommendation. If Master Servicer disapproves such request, it shall provide
Primary Servicer the reasons for such disapproval. If Master Servicer approves
such request, Primary Servicer shall promptly process the Category 2 Request in
a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement, and with respect to a Loan Pair, the related Loan Pair
Intercreditor Agreement. Primary Servicer shall draft, or cause to be drafted,
all documents necessary to effect the Category 2 Request in accordance with the
terms of the consent, the Loan Documents, this Agreement and the Pooling and
Servicing Agreement, and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement, and with respect to a Loan Pair, the related Loan Pair
Intercreditor Agreement. Primary Servicer shall deal directly with the
applicable Mortgagor regarding a Category 2 Request after Primary Servicer
submits the items on the applicable Requirements List.
e) Upon conclusion of the negotiations of the documentation for the
Category 2 Request for which Master Servicer has granted its consent, Primary
Servicer may execute and deliver the operative documents to be executed to
effect the Category 2 Request and take the other actions necessary or
appropriate to conclude such request, in each case in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement, and with respect to
a Loan Pair, the related Loan Pair Intercreditor Agreement.
f) Upon the request of Primary Servicer, Master Servicer shall execute
and deliver the documents necessary or appropriate to effect a Category 2
Request, which documents shall be prepared by the Primary Servicer. Such request
shall not relieve Primary Servicer of its obligations under this Agreement
regarding a Category 2 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement, and with respect to a Loan Pair, the
related Loan Pair Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
g) Upon completion of each Category 2 Request, Primary Servicer shall
promptly (but in no event more than ten (10) Business Days after concluding such
request) notify Master Servicer and shall accompany such notice with a copy of
the operative documents executed or received to effect the Category 2 Request.
h) Notwithstanding anything to the contrary in this Section 2, if a
Category 2 Request involves an action requiring the consent of Special Servicer
under the Pooling and Servicing Agreement, Primary Servicer shall not be
permitted to take any such action without the consent of Special Servicer in
accordance with the Pooling and Servicing Agreement. For any action relating to
an A/B Mortgage Loan or a Loan Pair requiring the consent of, or consultation
with, the holder of the related B Note and holders
of the related Serviced Companion Mortgage Loans under the Pooling and Servicing
Agreement, the related A/B Intercreditor Agreement and/or related Loan Pair
Intercreditor Agreement, Primary Servicer shall have the responsibility to seek
such consent or engage in consultation, unless the Special Servicer is required
to do so under the Pooling and Servicing Agreement. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 2 Requests as set forth above.
3. Category 3 Requests:
a) If Primary Servicer classifies a Post Closing Request as a Category
3 Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer and Special Servicer of
receiving such request and of Primary Servicer's classification of the Post
Closing Request as a Category 3 Request and shall refer such Category 3 Request
to the Special Servicer for handling in accordance with the Pooling and
Servicing Agreement.
b) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request shall
be directed to and through the Special Servicer (unless the Special Servicer and
Master Servicer shall otherwise direct the Primary Servicer). Primary Servicer
shall forward all correspondence and other information regarding such request in
its possession to Special Servicer.
B. Dispute of Classification.
1. Notification of Dispute. If either Master Servicer or Special Servicer
disputes the classification of Primary Servicer of any Post Closing Request (for
purposes of this Section B, the term "classification" shall include a
Materiality Determination of Primary Servicer regarding a Category 1 Consent
Aspect with respect to such Post Closing Request), then Master Servicer or
Special Servicer, as applicable, shall notify Primary Servicer of such dispute
promptly (but in no event more than five (5) Business Days from Primary
Servicer's notice of such classification) in writing and the specific reasons
for such dispute. The parties shall then work in good faith for a period not
more than five (5) Business Days to resolve the classification of the Post
Closing Request. Primary Servicer's classification of a Post Closing Request
shall govern the handling of such request absent Primary Servicer's receipt of
notice of such dispute within the specified time period but shall not diminish
the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement, and with respect to
a Loan Pair, the related Loan Pair Intercreditor Agreement.
2. Resolution of Dispute in Absence of Agreement. If after such good faith
efforts to resolve such classification dispute the parties cannot agree to a
classification, then the following shall apply: For Mortgage Loans, A/B Mortgage
Loans or Loan Pairs that individually, or together with all other Mortgage
Loans, A/B Mortgage Loans and Loan Pairs that have the same or an affiliated
Mortgagor or that are cross-collateralized with such Mortgage Loans, A/B
Mortgage Loans or Loan Pairs have a principal balance on the Cut-Off Date that
is in excess of two percent (2%) of the then Aggregate Principal Balance, then
the good faith classification of the Master Servicer or Special Servicer, as
applicable, shall govern. For Mortgage Loans that individually, or together with
all other Mortgage Loans, A/B Mortgage Loans and Loan Pairs that have the same
or an affiliated Mortgagor or that are cross-collateralized with such Mortgage
Loans, A/B Mortgage Loans or Loan Pairs have a principal balance on the Cut-Off
Date that is equal to or less than two percent (2%) of the then Aggregate
Principal Balance, then the good faith classification of the Primary Servicer
shall govern; provided that, in no event, shall Primary Servicer's
classification govern if such classification would, in the sole judgment of
Master Servicer or Special Servicer (as applicable), conflict with any provision
of the Pooling and
Servicing Agreement or result in a default by Master Servicer or Special
Servicer under the Pooling and Servicing Agreement.
3. Processing of Post Closing Request During Dispute. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist but in any event the processing of a Post Closing
Request must be accomplished in a manner consistent and in compliance with the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement, and with respect to a Loan Pair, the
related Loan Pair Intercreditor Agreement.
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2008-TOP29
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
1. Asset Files
Original credit file management X
Original collateral file (security) X
Authorized parties list for request for release of collateral from Trustee X X
Establish servicing files criteria X X
Provide access to servicing files and copies of servicing files or of
specific docs upon request to the Master Servicer X
Request delivery of files from Trustee upon request and certification of
Primary Servicer X
2. Property Taxes
Preparation and delivery of quarterly tax delinquency reports X
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans with/without escrows X
Notification of advance requirement 3 business days prior to advance
being required X
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Preparation and delivery of quarterly insurance tickler reports X
Monitoring of insurance status - Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement
qualifications X
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
Recommendation of payment or force placement of insurance with/without
escrow X
Notification of advance requirement or force placement of insurance 3
business days prior to advance being required X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Category 1 Requests and Deemed Category 1 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
Category 2 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
4. UCC Continuation Filings
Preparation and delivery of quarterly UCC tickler report X
Maintain tickler system of refiling the dates on all Loans X
File UCC Continuation Statements X
Pay recording fees X
Monitor tickler system X
5. Collection/Deposit/Distribution of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments X
Remittance of available Primary Servicer P&I payments to Master Servicer, X
B Note holders and holders of Serviced Companion Mortgage Loans, as
applicable (net of Aggregate Servicing Fee then due and payable to Primary
Servicer from such funds)
Provide Collection Reports to Master Servicer X
Distribution of P&I payments to the Trustee X
Distribution of Special Servicer compensation X
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone 3 days after delinquent date X
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180, and 90 X
days prior to the related maturity date
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
8. Escrows
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income required X
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Master Servicer X
Approve payoff calculations and telecopy approval to Primary Servicer
within five (5) Business Days X
10. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating statements, budgets, rent rolls and X
borrower financial statements, as applicable.
Deliver CMSA Operating Statement Analysis Report, CMSA Financial File and X
CMSA NOI Adjustment Worksheet in accordance with Section 2.1(c)(viii) of
this Agreement.
Deliver one (1) copy of quarterly and annual operating statements, X
budgets, rent rolls and borrower financial statement, as applicable,
within thirty (30) days of Primary Servicer's receipt
Complete CMSA Loan Setup File for Mortgage Loans X X
Complete CMSA Loan Periodic Update File for Mortgage Loans X
Complete and deliver CMSA Property File for Mortgage Loans X
Complete and deliver quarterly CMSA Operating Statement Analysis Report X X
and CMSA Financial File in accordance with Section 2.1(c)(viii) of this
Agreement.
Cash account Reconciliations - Copies of monthly bank statements for all X
deposit, escrow and reserve accounts
CMSA Supplemental Reports
Complete CMSA Watch List X
Complete CMSA Comparative Financial Status Report X
CMSA Delinquent Loan Status Report X
CMSA REO Status Report X
CMSA Historical Loan Modification Report X
CMSA Loan Level Reserve Report X
Complete and deliver CMSA Total Loan Report for each multiple note X
structure
11. Advancing
Determination of Non-Recoverability X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
12. Borrower Inquiries/Performing Loans
Performing Loans - respond to routine billing questions X
Category 1 Requests and Deemed Category 1 Requests
Assumptions & Due on sale:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of assumption X
Consent to assumption X
Close assumption X
Category 2 Requests
Assumptions & Due on sale:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of assumption X X
Consent to assumption X
Close assumption (directly with Borrower) X
Category 1 Requests and Deemed Category 1 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of additional lien, monetary encumbrance or mezzanine X
financing
Consent to additional lien, monetary encumbrance or mezzanine
financing X
Close additional lien, monetary encumbrance or mezzanine financing X
Category 2 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of additional lien, monetary encumbrance or mezzanine
financing X X
Consent to additional lien, monetary encumbrance or mezzanine X
financing
Close additional lien, monetary encumbrance or mezzanine financing X
(directly with Borrower)
Modifications (Non-Money Terms), Waivers, Consents and Extensions up to 60
days (not otherwise provided in this Agreement):
Initial Borrower contact and data gathering X
Underwriting and analysis X
Approval of modification and extensions up to 60 days (Category 1 X
Requests and Deemed Category 1 Requests)
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 2 X
Request)
Consent to modification and waivers and other consents (not otherwise X
provided in this Agreement)
Closing Documents and Closing X
Modification (Money Terms): X
Extensions of Maturity Date (more than 60 days): X
Response to request for Discounted Payoffs, Workouts, Restructures, X
Forbearances and Casualties
Condemnation (only with respect to Specially Serviced Mortgage Loans the X X X
Special Servicer will perform such functions)
13. Monthly Reporting (Hardcopy & Electronic mail)
Day One Report X
Delinquency and past due reporting on all Loans X
Deliver on April 25, July 25, October 25 and January 25 of each year a X
Quarterly Servicing Accounts
Reconciliation Certification in the form of Exhibit D
14. Category 1 Requests and Deemed Category 1 Requests
Release of Collateral
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee upon Primary Servicer request X
and certification
Preparation and recordation of release deeds all Loans (full and X
partial)
Category 2 Requests
Release of Collateral
Initial Borrower contact and data gathering X
Underwriting and analysis X
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee X
Preparation and recordation of release deeds all Loans (full and X
partial)
15. Property Annual Inspections
Conduct site inspection per Pooling and Servicing Agreement requirement X
Provide 3 copies of site inspection reports to the Master Servicer within X
30 days of inspection but not later than December 15 of each year
beginning in 2009
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
16. Preparation of servicing transfer letters X
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Master Servicer by January 31
of each year
18. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer X
Form 10-D Information Reports and Primary Servicer Form 10-K Information
Reports at the times and in the manner set forth in Section 5.13(c)
of this Primary Servicing Agreement
19. Provide annual statement of compliance at the times and in the manner set X
forth in Section 5.13(c) of this Primary Servicing Agreement
20. Provide either (a) a report regarding Primary Servicer's assessment of X
compliance with servicing criteria and a report by a registered public
accounting firm that attests to and reports on such assessment report or
(b) a report of a firm of independent public accounts based on
USAP-compliant examinations, as the case may be, at the times, in the
manner and as specified in Section 5.13(c) of this Primary Servicing
Agreement.
21. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and in X
the manner set forth in Section 5.13(c)(v) of this Primary Servicing
Agreement
22. Compensation
Primary Servicer Fee and other fees payable to the Primary Servicer by the X
B Note holders or the holders of the Serviced Companion Mortgage Loans
Investment earnings on Primary Servicer Collection Account X
Investment earnings on tax & insurance reserves not payable to borrower X
Investment earnings on reserve accounts not payable to borrower X
Late charges to the extent collected from borrower (offsets advance X
interest per Pooling and Servicing Agreement)
23. Defeasance
Coordinate, analyze, approve, and process defeasance request X
Consent to defeasance X
Service Defeasance Loans X
Retain all fees associated with Defeasance Loans X
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2008-TOP29
Space above this line for Recorder's use
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting solely in its capacity
as Master Servicer ("Master Servicer"), under the Pooling and Servicing
Agreement dated as of February 1, 2008 (the "Pooling and Servicing Agreement")
and a Primary Servicing Agreement dated as of February 1, 2008 (the "Primary
Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2008-TOP29, does hereby nominate, constitute
and appoint Principal Global Investors, LLC ("PGI"), as Primary Servicer under
the Primary Servicing Agreement ("Primary Servicing Agreement"), as its true and
lawful attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable PGI to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by PGI of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto PGI full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that PGI shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ______________.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, acting solely in its
capacity as Master Servicer under the
Pooling and Servicing Agreement and the
Primary Servicing Agreement
By:
------------------------------------
Name:
Title:
EXHIBIT D
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Principal Global Investors, LLC
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2008-TOP29
Pursuant to the Primary Servicing Agreement between Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo Bank") and Principal Global Investors, LLC
("Primary Servicer") for the transaction referenced above, I hereby certify with
respect to each mortgage loan serviced by Primary Servicer for Xxxxx Fargo Bank
for such transaction that within 25 days after the end of each of the months of
[January, February and March][April, May and June][July, August and
September][October, November and December], any and all deposit accounts, escrow
accounts and reserve accounts, and any and all other collection accounts and
servicing accounts, related to such mortgage loan have been properly reconciled,
and the reconciliations have been reviewed and approved, by Primary Servicer's
management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Principal Global Investors, LLC
Date: [April, July, October, January] 25, [20__]
D-1
EXHIBIT E
FORM OF COVER PAGE FOR REPORT OR CERTIFICATION
COMPLIANCE INFORMATION REPORT
IDENTIFYING INFORMATION FOR THIS REPORT:
Date of Submission: _______
Depositor: _____________________________________________
Trust: _____________________________________________
Pooling and Servicing Agreement: Pooling and Servicing Agreement dated as of
_______, ___, among ________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________,
___, between Xxxxx Fargo Bank, National
Association, as master servicer, and
______________, as Primary Servicer.
Master Servicer: Xxxxx Fargo Bank, National Association
Primary Servicer: _____________________________________________
Primary Servicer Contact Person: [Name][telephone][facsimile][email address]
THIS REPORT CONTAINS THE FOLLOWING INFORMATION:
Immediate Reporting:
[_] Form 8- K Reporting Information
Monthly Reporting:
[_] Form 10-D Reporting Information
Annual Reporting:
[_] Form 10-K Reporting Information
Annual Compliance:
[_] Compliance Assessment Report (Item 1122(a))
by Primary Servicer on Compliance With
Servicing Criteria in Item 1122(d) of
Regulation AB
[_] Attestation Report (Item 1122(b)) by
Registered Public Accounting Firm on
Compliance Assessment Report
[_] Statement of Compliance (Item 1123)
[_] Xxxxxxxx-Xxxxx Back-Up Certification
THIS REPORT AMENDS PRIOR REPORTING INFORMATION:
[_] Yes - Date of Submission of Prior Reporting
Information:
_____/______/______
[_] No
G-1
APPENDIX 1
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO MASTER SERVICER
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed
items to seek the consent of Master Servicer to a defeasance of a Mortgage Loan,
an A/B Mortgage Loan or a Loan Pair that Primary Servicer is permitted to
process under this Primary Servicing Agreement.
1. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
2. An Executed Certificate substantially in the form attached hereto at
Exhibit A.
3. (i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage Loan,
and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral.
4. Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required of
the related Mortgagor under the related Loan Documents without additional
expense to Primary Servicer or Master Servicer.
Appendix 1
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
February 1, 2008, between Primary Servicer and Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer") relating to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2008-TOP29.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
PRINCIPAL GLOBAL INVESTORS, LLC
By:
-----------------------------------
Name:
Title:
Exhibit A to Appendix 1
APPENDIX 2
Assignment and Assumption Submission to Special Servicer
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
(a) Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
Executive Summary:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
Page 1 of Appendix 2
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
Purchase price $
Buyer down payment $ (%)
Estimated closing date
1% loan fee split: Principal 40% - $
WFB, Master Serv. 10% - $
Centerline, Special Serv. 50% - $
Most recent appraised value according to appraisal in $
Primary Servicer's possession
Loan-to-value as if initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Financial Condition of Proposed Mortgagor/Guarantor:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
2 of Appendix 2
New Environmental and Engineering Developments (if any) and Status of Issues
identified in Original Reports or Loan Documents as needing Remediation: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Escrow Status:
1. Explain status of all reserves
Property Management Summary:
1. Who is proposed property management firm
2. Background and Experience
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
3 of Appendix 2
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
* **
By:
----------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
Consent to Assignment & Assumption is given:
CENTERLINE SERVICING, INC, acting solely in its capacity as Special Servicer
By:
----------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
4 of Appendix 2
Schedule of Exhibits to Assumption Submission
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
5 of Appendix 2
APPENDIX 3
Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission to Special Servicer
Mortgagor:
Master Servicer Loan #:
Primary Servicer Loan #:
Collateral Type: (Retail, Industrial, Apartments, Office, etc.)
Address of Property:
Asset Status As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
Executive Summary:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine financing
contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
Page 1 of Appendix 3
The transaction terms and property characteristics are summarized as follows:
Estimated closing date for financing:
Administrative fee to Primary Servicer $
Additional Fees, if any
(50%: Special Servicer; 10%: Master Servicer; 40%: Primary
Servicer $
Most recent appraised value according to appraisal in
Primary Servicer's possession $
Loan-to-value as of initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
Escrow Status:
1. Explain status of all Reserves
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
2 of Appendix 3
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
* **
By:
----------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
CENTERLINE SERVICING INC., acting solely in its capacity as Special Servicer
By:
----------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
3 of Appendix 3
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
4 of Appendix 3
APPENDIX 4
Lease Summary Submission Package
Loan # ________________________
Borrower Name:
________________________________________________________________________________
Property Name:
________________________________________________________________________________
Total Property NRSF (Per Rent Roll):
________________________________________________________________________________
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
________________________________________________________________________________
LEASE INFORMATION
1. Parties to Lease
a. Landlord: ____________________________________________________________
b. Rent Commencement Date:
______________________________________________________________________
c. Tenant: ______________________________________________________________
d. Parent Company (if
applicable): _________________________________________________________
e. Subtenant and/or Assignee (if
applicable): _________________________________________________________
F. IF YES, IS ORIGINAL TENANT LIABLE?
(Y/N) ________________________________________________________________
g. Guarantor(s): ________________________________________________________
h. Tenant financial statements
attached: ____________________________________________________________
i. If not,
why: _________________________________________________________________
2. Basic Lease Terms
a. Lease Commencement Date:
______________________________________________________________________
b. Rent Commencement Date:
______________________________________________________________________
c. Lease Expiration:
______________________________________________________________________
d. Unexercised Extension Options (Y/N):
______________________________________________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs):
______________________________________________________________________
-Terms: ______________________________________
e. Lease Type (Credit/Form):
______________________________________________________________________
f. Use of Premises:
Appendix 4
______________________________________________________________________
3. Lease Economic Terms
a. Current Base Annual Rent $
______________________________________________________________________
b. Scheduled Increases Date/New Annual:
______________________________________________________________________
c. Increases/Option Periods (Date/New Annual Rent/PSF):
______________________________________________________________________
d. Percentage Rent Clause? Breakpoint:
______________________________________________________________________
e. TI Amortization Component:
______________________________________________________________________
f. Rent Concessions (enter month):
______________________________________________________________________
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes ________________________________________________________________
b. Insurance ____________________________________________________________
c. Management Fees ______________________________________________________
d. Utilities ____________________________________________________________
e. Non-Structural Maintanance/Repair ____________________________________
f. Contract Services ____________________________________________________
g. Administrative (% of CAM) ____________________________________________
h. Professional Fees ____________________________________________________
i. CAM __________________________________________________________________
5. Options
a. Purchase Option (Note Date/Terms):
______________________________________________________________________
b. Right of First Refusal (Note Date/Terms/Reference
DOT): ________________________________________________________________
6. Other Information (Only note those that apply):
a. Expense Stop
Formula ______________________________________________________________
b. Base
Year _________________________________________________________________
c. Security/Other
Deposits _____________________________________________________________
d. Tenant Improvement
Allowance ____________________________________________________________
-Above Standard
TI's? __________________________________________________________________________
7. Compliance
a. Lease meets all requirements of the Loan Documents. (Y/N)
If no,
specify ________________________________________________________________________
b. Landlord has complied with all leasing requirements in the Loan
Documents. (Y/N)
If no,
specify ________________________________________________________________________
8. Recommendation
Request for Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Master Servicer to
the foregoing Lease Approval.
By:
-------------------------------------
Title:
---------------------------------
Date:
----------------------------------
Consent to Lease Approval is given:
Xxxxx Fargo Bank, National Association, acting solely in its capacity as Master
Servicer
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Loan Documents
