EXECUTION COPY
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PRIMARY SERVICING AGREEMENT
Dated as of February 1, 2007
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CAPMARK FINANCE INC.
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, 2007
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
as Depositor,
CAPMARK FINANCE INC.
as Master Servicer,
X.X. XXXXXX COMPANY, INC.
as Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS TRUSTEE AND CUSTODIAN
AND
LASALLE BANK NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-HQ11
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS.................................................................................1
ARTICLE II. PRIMARY SERVICING...........................................................................8
SECTION 2.1 PRIMARY SERVICING.........................................................................8
SECTION 2.2 STANDARD OF CARE.........................................................................15
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER..................................15
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES..........................................17
ARTICLE III. DOCUMENTS AND OTHER MATTERS................................................................17
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS...................................................17
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION....................................17
ARTICLE IV. MASTER SERVICER ASSISTANCE.................................................................18
SECTION 4.1 MASTER SERVICER ASSISTANCE...............................................................18
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS........................................................18
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS......................................................19
SECTION 5.1 NOTICE OF LITIGATION.....................................................................19
SECTION 5.2 NO PERSONAL SOLICITATION.................................................................19
SECTION 5.3 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY..................................19
SECTION 5.4 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED INFORMATION..........................19
SECTION 5.5 NO ADVANCING.............................................................................20
SECTION 5.6 REMIC COMPLIANCE.........................................................................20
SECTION 5.7 INSPECTION RIGHTS........................................................................20
SECTION 5.8 AUTHORIZED OFFICER.......................................................................20
SECTION 5.9 ADDITIONAL REPORTS.......................................................................20
SECTION 5.10 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES..............................................20
SECTION 5.11 CONSENTS.................................................................................21
SECTION 5.12 QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION................................21
SECTION 5.13 EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS........................................22
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION;.....................................................26
SECTION 6.1 PRIMARY SERVICER DEFAULT.................................................................26
SECTION 6.2 TERMINATION..............................................................................29
SECTION 6.3 POST-TERMINATION OBLIGATIONS.............................................................29
SECTION 6.4 ADDITIONAL TERMINATION...................................................................30
ARTICLE VII. SUBCONTRACTORS.............................................................................31
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER..................................31
ARTICLE IX. INDEMNIFICATION............................................................................32
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY.............................................................32
SECTION 9.2 MASTER SERVICER'S INDEMNITY..............................................................32
ARTICLE X. MISCELLANEOUS..............................................................................33
SECTION 10.1 SEVERABILITY.............................................................................33
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS...............................................................33
SECTION 10.3 HEADINGS.................................................................................33
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TAABLE OF CONTENTS
(continued)
PAGE
SECTION 10.4 CONSTRUCTION.............................................................................33
SECTION 10.5 ASSIGNMENT...............................................................................33
SECTION 10.6 PRIOR UNDERSTANDINGS.....................................................................35
SECTION 10.7 INTEGRATED AGREEMENT.....................................................................35
SECTION 10.8 COUNTERPARTS.............................................................................35
SECTION 10.9 GOVERNING LAWS...........................................................................35
SECTION 10.10 NOTICES..................................................................................35
SECTION 10.11 AMENDMENT................................................................................36
SECTION 10.12 OTHER....................................................................................36
SECTION 10.13 BENEFITS OF AGREEMENT....................................................................36
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This PRIMARY SERVICING AGREEMENT, dated and effective as of
February 1, 2007, by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the
capacity of primary servicer, the "Primary Servicer") and CAPMARK FINANCE INC.,
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"), Capmark Finance Inc., as master servicer, X.X. Xxxxxx Company,
Inc., as special servicer, LaSalle Bank National Association, as paying agent,
certificate registrar and authenticating agent, and Xxxxx Fargo Bank, National
Association, as trustee and custodian, have entered into a Pooling and Servicing
Agreement, dated as of February 1, 2007, relating to the Commercial Mortgage
Pass-Through Certificates, Series 2007-HQ11 (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/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. There are no
A/B Mortgage Loans relating to this Agreement.
"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 HQ11 Trust
constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": The Primary Servicing Fee and the
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 and A/B Mortgage Loans,
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), 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 HQ11 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. There are no B Notes relating to this Agreement.
"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.
"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 the form of which is attached to the Pooling and Servicing Agreement as
Exhibit W.
"CMSA Delinquent Loan Status Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
X.
"CMSA Financial File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit W.
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"CMSA Historical Loan Modification Report": A report which is
one element of the supplemental reports of the CMSA Investor Reporting Package
and the form of which is attached to the Pooling and Servicing Agreement as
Exhibit X.
"CMSA Investor Reporting Package": The Commercial Mortgage
Securities Association Investor Reporting Package, certain forms of which are
attached to the Pooling and Servicing Agreement as Exhibits W and X and elements
of which shall be produced as provided in Section 2.1(c) and the Task
Description.
"CMSA Loan Level Reserve/LOC Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
X.
"CMSA Loan Periodic Update File": A report which is one
element of the CMSA Investor Reporting Package and the form of which is attached
to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Setup File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit X.
"CMSA Property File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit W.
"CMSA Quarterly Financial File": A report which is one element
of the CMSA Investor Reporting Package and the form of which is substantially
similar to the form attached to the Pooling and Servicing Agreement as Exhibit
W.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Servicer Watch List": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W the
contents of which are set forth in Section 8.11(h) of the Pooling and Servicing
Agreement.
"Day One Report": With respect to each Mortgage Loan and A/B
Mortgage Loan, 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 or A/B Mortgage Loan 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, 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 HQ11 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 made on the related certificates under the related pooling and
servicing agreement.
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"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, within twenty (20) days following
the first anniversary of the Closing Date, for each of the Mortgage Loans
included on Schedule VII of the Pooling and Servicing Agreement (and related B
Notes), about the status of the work or project based upon the most recent
information provided by the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each
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 for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan immediately before the Due Date
occurring in such month, but prorated for the number of days during the calendar
month for such Mortgage Loan for which interest actually accrues on such
Mortgage Loan and only from collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with
respect to each Mortgage Loan.
"HQ11 Trust": The trust established under the Pooling and
Servicing Agreement.
"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.
"Loan Documents": As defined in the Post Closing Matters
Description in Exhibit B-2.
"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 and any A/B Mortgage
Loans.
"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.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in
Section 5.10(a) hereof.
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"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.
"Operating Statement Analysis": A report which is one element
of the MBA/CMSA Methodology for Analyzing and Reporting Property Income
Statements, which is part of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W.
"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 and the A/B Mortgage Loans, 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, the holder of the B
Note, if required by the applicable A/B 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 [_], 2007 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 and A/B Mortgage Loans 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 Capmark Finance Inc., as Master Servicer for Xxxxx Fargo Bank,
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11."
"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.
"Primary Servicer Fidelity Bond": As defined in Section 5.3(a)
hereof.
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"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 and A/B Mortgage
Loans 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 and
A/B Mortgage Loans 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 and each B Note, 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 for such month) multiplied by
the Scheduled Principal Balance of such Mortgage Loan (or the Principal Balance
in the case of each B Note) immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and only
from collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with
respect to each Mortgage Loan.
"Primary Servicing Officer": Any officer or employee of the
Primary Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans and A/B Mortgage Loans 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 and the A/B Mortgage Loans 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.
"Services": Those activities to be provided by the Primary
Servicer for the Servicing of the Mortgage Loans and the A/B Mortgage Loans
pursuant to the provisions of this Agreement.
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"Servicing": With respect to any Mortgage Loan and any A/B
Mortgage Loan, the right and obligation of the Primary Servicer to administer
such Mortgage Loan and any A/B Mortgage Loan in accordance with the provisions
hereof.
"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 and the A/B
Mortgage Loans 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 (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 and A/B Mortgage
Loans 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 and A/B Mortgage
Loans;
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 or B Note 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.
"Significant Leases": A Lease at a Mortgaged Property covering
or proposed to cover more than the greater of either (a) 20,000 net rentable
square feet or (b) twenty percent (20%) of the net rentable square footage of
the Mortgaged Property.
"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.
"Special Servicer": X.X. Xxxxxx Company, 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 and the A/B Mortgage Loans; provided, that the
Master Servicer shall perform all Services with respect to the Mortgage Loans
and the A/B Mortgage Loans until such Person, if any, is selected.
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"Task Description": The outline description of the obligations
of the Primary Servicer and Master Servicer with respect to the Mortgage Loans
and the A/B Mortgage Loans as set forth in Exhibit B-4 attached to this
Agreement.
"Trustee": Xxxxx Fargo 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 and each A/B Mortgage
Loan 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 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 and the A/B Mortgage Loans.
(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 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 and the A/B
Mortgage Loans 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 subject to and in
accordance with the criteria and requirements set forth in the
applicable A/B Intercreditor Agreement, as they relate to a
particular B Note and those set forth in the Pooling and
Servicing Agreement relating to the Collection Account
established thereunder (construed as if the Primary Servicer
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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.
(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 and
the A/B Mortgage Loans (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 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, 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 received with respect to each A/B Mortgage Loan and
each Mortgage Loan (less any related Aggregate Servicing Fee
and any other payments due to Primary Servicer 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. With respect to funds
deposited into the Primary Servicer Collection Account for
each A/B Mortgage Loan, on or before the end of the third
Business Day after the Primary Servicer receives such funds
the Primary Servicer shall determine, in accordance with the
provisions of the applicable A/B Intercreditor Agreement, the
amount (if any) of such funds required to be paid to the
holder of the related B Note (less any primary servicing fee
or other fee, if any, agreed to be paid by the holder of such
B Note to the Primary Servicer pursuant to the applicable A/B
Intercreditor Agreement or other agreement between the Primary
Servicer and such B Note holder, together with any other
payments related to such B Note, which are payable to the
Primary Servicer). Such amounts shall be paid to each holder
of a B Note, at the times and in the manner required pursuant
to the provisions of the applicable A/B Intercreditor
Agreement.
(iv) Subject to the previous subsection, and after
making the determination of the amount required to be paid to
the holder of the B Note, 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 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
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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
(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 single loan remittance 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 and A/B Mortgage Loans, 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
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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 and A/B
Mortgage Loans 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 and
A/B Mortgage Loans; (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 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 and the A/B Mortgage
Loans 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 and the A/B Mortgage Loans to Primary Servicer
who shall complete the fields and aspects of the CMSA
Loan Setup File for the Mortgage Loans and the A/B
Mortgage Loans that are not available from the Final
Prospectus Supplement and return to Master Servicer
the completed CMSA Loan Setup File for the Mortgage
Loans and the A/B Mortgage Loans 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 and the A/B Mortgage Loans 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 March 2007.
(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
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report to the Master Servicer at or before the time
described opposite such report below (and with respect
to an A/B Mortgage Loan, deliver any additional
reports to the holder of the related B Note which may
be required to be delivered to the holder of such B
Note, at such times as may be required pursuant to the
applicable A/B Intercreditor Agreement):
------------------------ -------------------------- ------------- ----------------------------------------------------
Description of Month of Frequency Time of Required
Report Initial of Delivery to the
Report Report Master Servicer
------------------------ -------------------------- ------------- ----------------------------------------------------
CMSA Property File April 2007 Monthly 10th Business Day for prior month but in no event
later than the Business Day prior to the Report
Date in such month.
------------------------ -------------------------- ------------- ----------------------------------------------------
Operating Statement June 2007 for year-end Annually With respect to each calendar year, beginning in
Analysis Report, CMSA 2006 2007 for year-end 2006, the earlier of (i) 30 days
Financial File and NOI after receipt of the underlying operating
Adjustment Worksheet statements from the borrower or (ii) June 1.
------------------------ -------------------------- ------------- ----------------------------------------------------
CMSA Loan Level April 2007 Monthly 10th Business Day for prior month but in no event
Reserve/LOC Report later than the Business Day prior to the Report
Date in such month.
------------------------ -------------------------- ------------- ----------------------------------------------------
CMSA Servicer Watch April 2007 Monthly 10th Business Day for prior month but in no event
List later than the Business Day prior to the Report
Date in such month.
------------------------ -------------------------- ------------- ----------------------------------------------------
CMSA Comparative April 2007 Monthly 10th Business Day for prior month but in no event
Financial Status Report later than the Business Day prior to the Report
Date in such month
------------------------ -------------------------- ------------- ----------------------------------------------------
Quarterly Operating July 2007 Quarterly, With respect to a calendar quarter, within 95 days
Statement Analysis but with following the end of such calendar quarter
Report and CMSA respect to (commencing with the quarter ending on June 30,
Quarterly Financial only the 2007).
File first three
calendar
quarters in
each year
------------------------ -------------------------- ------------- ----------------------------------------------------
(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, CMSA Loan Periodic
Update File; CMSA Delinquent Loan Status Report; CMSA
Historical Loan Modification Report; CMSA Loan Level
Reserve Report; and CMSA Total Loan 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
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be requested in writing by the Primary Servicer, to
enable the Primary Servicer to prepare and deliver to
each holder of a B Note any reports or notices
required to be delivered to each such holder of a B
Note, pursuant to the provisions of the applicable A/B
Intercreditor Agreement.
(5) Notwithstanding the definitions of various
CMSA reports in this Agreement that directly link such
reports to a form attached as part of Exhibit W and
Exhibit X to 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 (a) the Commercial
Mortgage Securities Association has amended the
applicable reports and published such amendments as
its revised form on its website; (b) Master Servicer
gives Primary Servicer no less than one hundred twenty
(120) days notice of any required amendments or
revisions to a report prior to their becoming
effective as the form of report to deliver under this
Agreement; and (c) any such amendments or revisions
(either singly or in the aggregate) shall not impose
undue additional burden or costs upon Primary Servicer
to collect, format, calculate or report information to
Master Servicer.
(6) All Operating Statement Analysis Reports,
NOI Adjustment Worksheets, financial statements, rent
rolls, and budgets delivered by the Primary Servicer
to the Master Servicer electronically.
(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 and each A/B Mortgage Loan.
(xi) Within thirty (30) days following the Closing
Date, Primary Servicer shall deliver to Master Servicer a
report listing the tax parcels coinciding with the Mortgaged
Properties.
(xii) All amounts collected by the Primary Servicer
during a Collection Period with respect to the A/B Mortgage
Loan, which are payable to the holder of the applicable B Note
pursuant to the provisions of the applicable Intercreditor
Agreement, shall be paid by the Primary Servicer to such B
Note holder 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 pursuant to the
provisions of the A/B Intercreditor Agreement, 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
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after the Master Servicer receives the Primary Servicer's
written request, and the Primary Servicer shall make the
disbursement at issue to the B Note holder 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 between the holders of the related
Mortgage Loan and its related B Note, 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 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, 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. In the event that collection
responsibilities for an A/B Mortgage Loan 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 and are payable to the
holder of the applicable B Note pursuant to the provisions of
the related A/B Intercreditor Agreement shall be remitted by
the Master Servicer to such B Note holder no later than three
Business Days after the collection of such funds,
notwithstanding any provision of the applicable A/B
Intercreditor Agreement that may provide the Servicer with a
longer period of time to remit such collected funds to the B
Note holder (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, shall be so
remitted on the next succeeding Master Servicer Remittance
Date).
(d) Commencing in the year 2008, Primary Servicer
shall inspect, or cause to be inspected, each of the Mortgaged
Properties for the Mortgage Loans and the A/B Mortgage Loans 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 applicable A/B Intercreditor
Agreement, a property inspection report in the form attached as Exhibit
B-3 ("Property Inspection Description").
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 and A/B Mortgage Loans, the related Mortgagors or the
related Mortgaged Properties which become known to Primary Servicer
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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 or any A/B Mortgage Loan 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
and A/B Mortgage Loans 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 or A/B
Mortgage Loan 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 and/or A/B Mortgage Loans);
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 servicing of the
Mortgage Loans and the A/B Mortgage Loans, 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.
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY
SERVICER As consideration for the Primary Servicer's performance of the Services
hereunder: (a), the Primary Servicer shall be entitled to deduct the Aggregate
Servicing Fee in accordance with Section 2.1(c)(iii) of this Agreement, with
respect to the related Collection Period for each Mortgage Loan for which a
payment was
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received by the Master Servicer or forwarded to the Master Servicer by the
Primary Servicer; and (b) with respect to each A/B Mortgage Loan, the Primary
Servicer shall be entitled to deduct any Primary Servicing Fee or other fee
payable to the Primary Servicer as may be agreed to by the holder of the related
B Note, from each payment received by the Primary Servicer and which is
allocable to such holder of the related B Note, all in accordance with the
provisions of Section 2.1 of this Agreement. Notwithstanding the foregoing,
Primary Servicer shall not be entitled to a Primary Servicing Fee with respect
to any Mortgage Loan (other than an A/B Mortgage Loan) 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, even if (a) any Mortgage Loan or Mortgage
Loans become Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing
is terminated with respect to particular 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 Loan or Mortgage Loans 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 Loans 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 and the A/B Mortgage Loans. 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 or an
A/B Mortgage Loan 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 or an A/B Mortgage Loan
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 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.
In no event shall the Primary Servicer be responsible for
reimbursing or paying any independent costs or expenses incurred by the Master
Servicer in connection with a request for a
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modification, waiver or amendment of a Mortgage Loan unless the Master Servicer
has first notified the Primary Servicer of its intent to incur such cost or
expense and the Primary Servicer has agreed to pay (or cause to be paid) such
cost or expense.
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES
(a) (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 and A/B Mortgage Loan, Primary Servicer has
serviced each of the Mortgage Loans and A/B Mortgage Loans 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 15, 2007, between the Primary
Servicer, the Depositor and the Underwriter.
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 and the A/B Mortgage Loans 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 or A/B Mortgage Loan, 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 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 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 terms and conditions of 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 and the A/B
Mortgage Loans and the Servicing of the Mortgage Loans and the A/B Mortgage
Loans as the Primary Servicer shall reasonably request in writing.
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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 or an A/B Mortgage Loan that has been repaid
in full, a certificate with respect to the payment in full of the related
Mortgage Loan or A/B Mortgage Loan.
(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 and A/B Mortgage Loans 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 or A/B Mortgage Loan such other
matters as would, consistent with the Servicing Standard, require notification
to the owner or the servicer of the Mortgage Loan or A/B Mortgage Loan. 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 or A/B Mortgage Loan 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 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).
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ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
SECTION 5.1 NOTICE OF LITIGATION With respect to any Mortgage
Loan or A/B Mortgage Loan 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 or
A/B Mortgage Loan and shall, when reasonably required or requested by the Master
Servicer, provide to the Master Servicer copies of all pertinent information in
the Primary Servicer's possession related to such litigation, including, without
limitation, copies of related Servicing Documents.
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 or A/B Mortgage Loan by any Mortgagor. Primary
Servicer agrees not to forward to any Mortgagor or other obligors under a
Mortgage Loan or A/B Mortgage Loan, 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) (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 and
of the A/B Mortgage Loan by the Primary Servicer and its employees, officers,
directors, agents and representatives if such events involve funds relating to
the Mortgage Loans and the A/B Mortgage Loan. The total of such losses,
regardless of whether claims are filed with 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 or the A/B Mortgage Loans 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
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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 and/or the A/B Mortgage Loans.
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 and the A/B Mortgage
Loans, 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
or the A/B Mortgage Loans 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 and the A/B
Mortgage Loans 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.
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); provided, however, that for all Principal Prepayments
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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 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). 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 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 or A/B Mortgage Loans 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; and (e) with
respect to an A/B Mortgage Loan, if required by the related A/B Intercreditor
Agreement, obtain the consent of the holder of the related B Note for those
actions which require the consent of such B Note holder.
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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 2007 (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 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 HQ11 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.
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 HQ11 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:
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(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 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
conform or would conform to the standards for attestation
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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.
(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).
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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.
(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.
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(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.]
(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 and holders of any B Note
shall not be materially and adversely affected
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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 applicable A/B 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: (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
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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 and holders of any B Note 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 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, 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;
(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, which failure continues unremedied beyond
the expiration of applicable cure periods; or
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(k) the Primary Servicer shall fail to terminate any
sub-servicer appointed by it that is a Reporting Servicer 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.
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.
SECTION 6.2 TERMINATION (a) (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 (x) the last Mortgage Loan or (y) the
A/B Mortgage Loan (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 and each A/B 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) (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 and A/B Mortgage Loans, and shall, if
so requested by the Master Servicer,
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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 and the A/B Mortgage Loans transferred thereon but only to
the extent such contracts are assignable and the required consents (if any) to
such assignments have been obtained. The 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 and any A/B Mortgage Loan 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 and each
A/B Mortgage Loan, 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 and A/B Mortgage Loan.
(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 and A/B Mortgage Loans of the address to which payments on such Mortgage
Loans and A/B Mortgage Loans 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 and any A/B Mortgage Loan 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 and A/B Mortgage Loans 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 or A/B Mortgage
Loan 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 and A/B Mortgage Loans 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 or A/B Mortgage Loan (i) if and when such Mortgage Loan
or A/B Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO
Mortgage Loan or (ii) if and when such Mortgage Loan or A/B Mortgage Loan is
sold or otherwise disposed of by or on behalf of the Trust (which sale or
disposition shall not include the transformation of a Mortgage Loan or A/B
Mortgage Loan into a Defeasance Loan). In the event of such
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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 or A/B Mortgage Loan 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 or A/B Mortgage Loan 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
or A/B Mortgage Loan accrued through the date of termination of its obligations
and rights with respect to such Mortgage Loan or A/B Mortgage Loan 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 or A/B
Mortgage Loan subsequently becomes a Rehabilitated Mortgage Loan, then the
Primary Servicer shall promptly resume the servicing of such Mortgage Loan or
A/B Mortgage Loan 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 and A/B Mortgage
Loans; 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 and the A/B Mortgage Loans; (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.
ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage Loans
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
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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) (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 (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 or the A/B Mortgage Loans 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, 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 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 HQ11
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
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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) (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.
(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.
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(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.
(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.
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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 and the A/B Mortgage Loans and the other matters contained herein. This
Agreement, together with the Pooling and Servicing Agreement and each A/B
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 and each A/B 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. 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,
(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 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, 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
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
-35-
SECTION 10.11 AMENDMENT In the event that the Pooling and Servicing
Agreement or an A/B 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 or such A/B Intercreditor
Agreement, but no such amendment to the Pooling and Servicing Agreement or A/B
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
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, 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 HQ11 Trust are
intended third-party beneficiaries of Section 5.13 and Section 6.1.
[END OF PAGE]
-36-
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.
CAPMARK FINANCE INC., acting solely in its
capacity as Master Servicer under the Pooling
and Servicing Agreement
By: /s/ Xxxxxx Xxxxxxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Senior Vice President
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Senior Investment
Counsel
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULES
PRIMARY
PROSPECTUS SERVICING
TAB CUT-OFF FEE RATE
NUMBER LOAN NAME DATE BALANCE (BASIS POINTS)
------ --------- ------------ --------------
10 Residence Inn Tudor Wharf $46,260,000 1
24 Southlake Corners $20,625,000 1
49 000 Xxxxx Xxxx $13,971,230 1
00 Xxxx Xxxxx Xxxxxxx Apartments $13,387,505 1
58 Prairie Packaging Facility $10,400,000 1
64 Euram Building $9,000,000 1
71 000 Xxxxxxxx Xxxxx $8,800,000 1
73 Cedar Tree Apartments $8,591,981 1
85 Allstate Office Building $7,500,000 1
87 Lakeshore Village Apartments $6,794,334 1
91 0000 Xxxxx Xxxxxxx Xxxxxxx $6,500,000 1
102 0000 Xxxx Xxxxx Xxxxxx $5,550,000 1
000 Xxxxxxxx Xxxxxx $5,320,000 1
113 Supply One Warehouse $5,097,423 1
127 Green Country Distribution $4,300,000 1
141 10620 & 00000 Xxxxxxxx Xxxx 0
Xxxxxxxxx $3,050,000
000 Xxxxx Xxxxxx Shopping Center $2,298,851 1
154 1525 Mall Road $2,226,333 1
157 West Lodi Self Storage $2,148,161 1
159 4110-4120 Xxxxxxxxx Retail Center $1,998,303 1
160 000 Xxxxxxxxx Xxxx $1,998,303 1
161 00000 Xxxxxx Xxxxx $1,997,467 1
164 1030 International Parkway $1,600,000 1
165 Morgan Manor $1,598,695 1
166 0000 0xx Xxxxxx Xxxxx $1,548,808 1
171 0000 Xxxxxxxxx Xxxxxxxxx $639,118 1
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 or A/B Mortgage Loan, as applicable, for action
("Post Closing Request") on its related Mortgage Loan or A/B Mortgage Loan,
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, 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 Transfer rights contemplated in Loan Primary Servicer collects entire
Requests (other than either (a) specifically Documents (including without administrative or processing fee
Deemed Category 1 authorized in the related limitation assignment and assumption (including without limitation
Requests) Loan Documents (as defined rights); partial releases defeasance fees), legal fees and
in Exhibit B-2(c)(A.1(b)), contemplated in Loan Documents; out-of-pocket expenses and 80%
either expressly as a easements contemplated in Loan of any additional fees or
matter of right in favor of Documents; evaluation of alterations portions of fees (including
the Mortgagor or upon the under specified threshold; without limitation transfer
satisfaction of certain administer, monitor and release of fees) payable to Master Servicer
specified conditions reserve or escrow amounts in under Pooling and Servicing
(including the exercise of accordance with reserve or escrow Agreement (i.e. transfer fee).
any specified standard of agreements; approval of leases below Other 20% of such additional
consent or judgment within threshold specified in Loan fees are payable to Master
such conditions subject to Documents; additional lien, monetary Servicer. Special Servicer
the terms of this encumbrance or mezzanine financing would receive any portion of
Agreement); or (b) seeks placed on Mortgaged Property that is fees due it under the Pooling
the approval of the related specifically contemplated in Loan and Servicing Agreement. Master
Mortgagee under the related Documents under specified Servicer may also collect its
Loan Documents for a Lease conditions; or process of defeasing out-of-pocket expenses which it
and/or the issuance of an a Mortgage Loan (except defeasance shall itemize in reasonable
SNDA for a Lease. of a Specially Serviced Mortgage detail.(1)
Loans which shall not be the
responsibility of the Primary
Servicer) and servicing of Mortgage
Loans and A/B Mortgage Loans that
have been defeased; approval of a
Lease requiring such approval of
Mortgagee under the Loan Documents;
or issuance of an SNDA.
---------------------- ----------------------------- -------------------------------------- ----------------------------------
2 Category 2 Post Closing Request (other Consent to easement not contemplated For all Mortgage Loans, other
Requests for all than Category 3 Request) is in Loan Documents; partial releases than A/B Mortgage Loans:
Mortgage Loans (a) not specifically not specifically contemplated in Primary Servicer entitled to one
(other than A/B authorized or is prohibited Loan Documents; or subordinate or hundred percent (100%) of
Mortgage Loans) and or not addressed in the mezzanine financing not specifically administrative or processing
Deemed Category 1 Loan Documents; and (b) not contemplated in Loan Documents. fee. Additional fees are
Requests seeking approval of a Lease payable to Master Servicer
requiring such approval of and/or Special Servicer as
Mortgagee under the related specified in Pooling and
Loan Documents or issuance Servicing Agreement. Master
of an SNDA. Servicer may also collect its
out-of-pocket expenses.(1)
For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
---------------------- ----------------------------- -------------------------------------- ----------------------------------
3 Category 3 Post Closing Requests to Changes to maturity date, interest Primary Servicer not entitled to
Requests Money Terms, Defaulted rate, principal balance, amortization fee. Master Servicer or Special
Mortgage Loans or Mortgage term, payment amount or frequency; or Servicer is entitled to fees as
Loans upon which a any actions to loan in default. provided in the Pooling and
Servicing Transfer Event Servicing Agreement.(1)
has occurred.
---------------------- ----------------------------- -------------------------------------- ----------------------------------
---------------
(1) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of Sections
2.1, 2.3, 6.3 and 6.4 of this Agreement.
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.
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. 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.
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 or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
and the Loan Documents for such Mortgage Loan or A/B Mortgage
Loan 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 or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
to another Person who shall assume the Mortgage Loan or A/B
Mortgage Loan 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.
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 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 Section 8.18(d) of 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 such Section 8.18(d).
For any action relating to a Mortgage Loan or an A/B Mortgage Loan requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall have the responsibility to seek the consent of
Special Servicer in accordance with such section. 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. 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. 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.
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 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 Section 8.18(d) of 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 such Section 8.18(d). For any action relating to a
Mortgage Loan or an A/B Mortgage Loan requiring the consent of Special Servicer
under Section 8.18(d) of the Pooling and Servicing Agreement, Primary Servicer
shall have the responsibility to seek the consent of Special Servicer in
accordance with such section. 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.
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 or A/B
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans 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 and A/B
Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans 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.
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 2007-HQ11
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 TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 X
upon request to the Master Servicer
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Request delivery of files from Trustee upon request and certification of Primary X
Servicer
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 X
prior to advance being required
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 and B Note X
holders, as applicable (net of Aggregate Servicing Fee and other fees
payable to the Primary Servicer by the B Note holders)
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 days prior to X
the related maturity date
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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
borrower financial statements, as applicable. X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Deliver Operating Statement Analysis Report, CMSA Financial File and NOI
Adjustment Worksheet in accordance with Section 2.1(c)(viii) of this
Agreement. X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Deliver one (1) copy of quarterly and annual operating statements, budgets,
rent rolls and borrower financial statement, as applicable, within thirty X
(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 Operating Statement Analysis Report and CMSA
Quarterly Financial File in accordance with Section 2.1(c)(viii) of
this Agreement. X X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Cash account Reconciliations - Copies of monthly bank statements for all deposit,
escrow and reserve accounts X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
CMSA Supplemental Reports
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Complete Servicer Watch List X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Complete Comparative Financial Status Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Delinquent Loan Status Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
REO Status Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Historical Loan Modification Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Loan Level Reserve Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Total Loan Report X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
11. Advancing
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Determination of Non-Recoverability X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 financing X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 financing X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 Requests and X
Deemed Category 1 Requests)
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 2 Request) X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Consent to modification and waivers and other consents (not otherwise provided in X
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, Forbearances and X
Casualties
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Condemnation (only with respect to Specially Serviced Mortgage Loans the Special X X X
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
Quarterly Servicing Accounts Reconciliation Certification in the form of X
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 and X
certification
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
Preparation and recordation of release deeds all Loans (full and partial) X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 partial) X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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
30 days of inspection but not later than December 15 of each year X
beginning in 2007
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
16. Preparation of servicing transfer letters X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting
requirements) and delivery of copies to the Master Servicer by January 31 X
of each year
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
18. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer
Form 10-D Information Reports and Primary Servicer Form 10-K Information X
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 forth in X
Section 5.13(c) of this Primary Servicing Agreement
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
20. Provide either (a) a report regarding Primary Servicer's assessment of
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. X
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
21. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and in the manner set X
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 B Note X
holders
------------------------------------------------------------------------------------------------- -------- -------- -------- -------
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 interest per X
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 2007-HQ11
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
CAPMARK FINANCE INC., acting solely in its capacity as Master
Servicer ("Master Servicer"), under the Pooling and Servicing Agreement dated as
of February 1, 2007 (the "Pooling and Servicing Agreement") and a Primary
Servicing Agreement dated as of February 1, 2007 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2007-HQ11, 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 __________________.
CAPMARK FINANCE INC., 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 2007-HQ11
Pursuant to the Primary Servicing Agreement between Capmark Finance
Inc. ("Capmark") 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 Capmark 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 Capmark
Finance Inc., as master servicer, and ______________, as Primary
Servicer.
Master Servicer: Capmark Finance Inc.
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
E-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
or an A/B Mortgage Loan that Primary Servicer is permitted to process under this
Primary Servicing Agreement.
1. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
2. An Executed Certificate substantially in the form attached hereto at
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, 2007, between Primary Servicer and Capmark Finance Inc., as master
servicer (the "Master Servicer") relating to the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ11.
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
Page 1 of Appendix 2
5. Briefly describe collateral
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% - $
----------------------------------------------------- --------------------------
Capmark, Master Serv. 10% - $
----------------------------------------------------- --------------------------
JER, 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:
X.X. XXXXXX COMPANY, 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
Page 1 of Appendix 3
8. Complete the chart below:
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:
1. State recommendation for approval.
2 of Appendix 3
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:
X.X. XXXXXX COMPANY, 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:
_______________________________________________________________________
--------------------------------------------------------------------------------
1 of 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?__________________________________________________
--------------------------------------------------------------------------------
2 of Appendix 4
--------------------------------------------------------------------------------
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:
Capmark Finance Inc., acting solely in its capacity as Master Servicer
By: ___________________________________
Title:_________________________________Date: ___________________________________
3 of Appendix 4
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
4 of Appendix 4
