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Exhibit
10.62
INTERCREDITOR AND
SERVICING AGREEMENT
THIS INTERCREDITOR AND
SERVICING AGREEMENT (this “ Agreement ”) dated
as of the 15 th day
of August, 2007 by and between WACHOVIA BANK, NATIONAL ASSOCIATION,
having an address at 301 South College Street – NC0166,
Charlotte, North Carolina 28288-0166 (“ Initial Lead
Lender ”), and MW1-2002, LLC, having an address at 301
South College Street – NC0166, Charlotte, North Carolina
28288-0166 (“ Initial Co-Lender
”).
RECITALS:
A. Initial Lead Lender
originated that certain loan in the original principal sum of
$157,00,000.00 (the “ Loan ”) to UTC Properties
LLC, a Delaware limited liability company (the “
Borrower ”), which is secured, inter alia , by
that certain open-end fee and leasehold mortgage, security
agreement and fixture filing (as amended, modified or supplemented,
the “ Mortgage ”), dated March 29, 2007, on
certain parcels of real property contained in Exhibit C attached
hereto (the “ Property ”);
B. The Mortgage secures two
(2) separate and distinct obligations represented by that
certain Promissory Note A in the original principal amount of
$137,000,000 (together with any and all renewals, amendments,
modifications, consolidations and extensions thereof, “
Note A ”) and that certain Promissory Note B in the
maximum principal sum of $20,000,000 (together with any and all
renewals, amendments, modifications, consolidations and extensions
thereof, “ Note B ” and together with Note A,
collectively, the “ Promissory Note
”).
C. The portion of the Loan
evidenced by Note A is identified as “ Loan A ”
and the portion of the Loan evidenced by Note B is identified as
“ Loan B ” and which, together with Loan A, is
collectively referred to as the “ Loan
”.
D. The Promissory Note is
secured, inter alia, by the Mortgage. All documents evidencing or
securing the Loan (including, without limitation, the Mortgage and
the Promissory Note) shall be collectively referred to herein as
the “ Loan Documents .”
E. Capitalized terms not
specifically defined herein shall have the meanings ascribed
thereto in the Mortgage, and if a capitalized term is not defined
in the Mortgage, it shall have the meaning ascribed thereto in the
other Loan Documents.
NOW, THEREFORE, in
consideration of the foregoing and for other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant, agree, represent and
warrant as follows:
1. Definitions .
References to a “Section”, the “preamble”
or the “recitals” are, unless otherwise specified, to a
Section, the preamble or the recitals of this Agreement. Whenever
used in this Agreement, the following terms shall have the
respective meanings set forth below unless the context clearly
requires otherwise.
“ Accepted Servicing
Practices ” shall mean the higher of (a) the same
care, skill, prudence and diligence with which Lead Lender services
and administers similar mortgage loans for other third party
portfolios, giving due consideration to customary and usual
standards of
practice of prudent institutional
commercial lenders servicing their own loans and (b) the same
care, skill, prudence and diligence which Lead Lender utilizes for
loans which Lead Lender owns for its own account, in each case,
acting in accordance with applicable law, the terms of this
Agreement, the Loan Documents and the Loan’s insurance
policies and with a view to the maximization of timely recovery of
principal and interest on a net present value basis on the Loan,
but without regard to:
(i) any relationship that
Lead Lender or any Affiliate of Lead Lender may have with the
Borrower or any Affiliates of the Borrower;
(ii) the ownership of any
interest in the Loan by Lead Lender or any Affiliate of Lead
Lender;
(iii) the ownership of any
junior indebtedness with respect to the Property by Lead Lender or
any Affiliate of Lead Lender;
(iv) Lead Lender’s
obligation to make Advances as specified herein;
(v) Lead Lender’s right
to receive compensation for its services hereunder or with respect
to any particular transaction; or
(vi) the ownership, or
servicing or management for others, by Lead Lender or any
sub-servicer, of any other mortgage loans or properties;
provided , however , that,
subject to Section 3(c), from and after the occurrence of a
Securitization Date, “Accepted Servicing Practices”
shall have the same meaning as the analogous definition set forth
in the Pooling Agreement, which shall be substantially similar in
all material respects with the definition set forth herein,
consistent with similar definitions in other pooling and servicing
agreements, trust and servicing agreements or similar agreements
and shall provide, among other things, that the master servicer and
Special Servicer shall service the Loan for the benefit of Lead
Lender and Co-Lender as a collective whole, taking into account
that Co-Lender’s interests in the Loan are subordinate to
that of Lead Lender, as provided in this Agreement. “Lead
Lender” solely as used in this definition shall also refer to
any servicer acting as servicer or administrator of the
Loan.
“ Additional Trust
Fund Expenses ” shall mean (a) all fees and expenses
incurred by and reimbursable to the master servicer, the Special
Servicer, the Trustee, the fiscal agent or the Securitization Trust
pursuant to the Pooling Agreement, and (b) all interest
accrued on principal and/or interest advances made by the master
servicer or the Special Servicer in accordance with the terms of
the Pooling Agreement; provided that the aggregate special
servicing administration fee (or equivalent) shall not exceed the
lesser of (x) market rates, as determined by Lead Lender in
its reasonable discretion, or (y) an amount equal to
0.4% per annum of the outstanding principal balance of the
Loan, the special servicing liquidation fee (or equivalent) shall
not exceed 1.5% of the collections made with respect to the Loan or
any sums received from Loss Proceeds or proceeds from the
disposition of the Property, as the case may be, and the special
servicing workout fee (or equivalent) shall not exceed 1.5% of the
collections made with respect to the Loan while the Loan is a
performing or “corrected” loan (or such other analogous
term used in the Pooling Agreement). If (x) the Loan becomes a
Specially Serviced
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Mortgage Loan pursuant to clause
(e) of the definition thereof solely based on Lead
Lender’s knowledge of an imminent material default under the
Loan and (y) the imminent material default ultimately does not
result in a material default and a workout of the Loan does not
occur, then Special Servicer shall not be entitled to a workout fee
(or equivalent), but shall be entitled to receive its applicable
special servicing administrative fee (or equivalent).
“ Advances
” shall have the meaning assigned to such term in
Section 5.
“ Agreement
” shall mean this Intercreditor and Servicing Agreement, the
exhibits and schedules hereto and all amendments hereof and
supplements hereto.
“ Appraisal
Event ” shall have the meaning set forth in
Section 29.
“ Approved Letter of
Credit ” shall mean an irrevocable, unconditional,
transferable, clean sight draft letter of credit in favor of Lead
Lender and its successors and/or assigns, with a term of not less
than one (1) year and which is drawable in whole or in part by
sight draft in New York City, issued by a bank having a long-term
unsecured debt rating of not less than “AA” (or its
equivalent) and a short-term unsecured debt rating of not less than
“A-1” (or its equivalent) by each Rating Agency and
otherwise reasonably acceptable to Lead Lender.
“ Asset Status
Report ” shall have the meaning assigned to such term in
Section 3(f).
“ Borrower
” shall have the meaning assigned to such term in the
recitals.
“ Borrower Related
Parties ” shall have the meaning assigned to such term in
Section 16.
“ CDO Asset
Manager ” with respect to any Securitization Vehicle that
is a CDO (each as defined in the definition of Qualified
Institutional Lender), shall mean the entity that is responsible
for managing or administering Note B as an underlying asset of such
Securitization Vehicle or, if applicable, as an asset of any
Intervening Trust Vehicle (including, without limitation, the right
to exercise any consent and control rights available to the holder
of Note B).
“ Co-Lender
” shall mean Initial Co-Lender or any subsequent holder of
Loan B.
“ Co-Lender
Servicing Fee Rate ” shall mean a per annum rate
determined by Lead Lender, but in no event greater than
0.015% per annum.
“ Collateral
Value ” shall mean, with respect to the Property, the
value thereof as determined by the most recent appraisal of the
Property as provided in Section 29.
“ Control Appraisal
Period ” shall be deemed to have occurred if and so long
as (a) the Note B Principal Balance minus an amount equal to
the excess, if any, of (i)(A) the outstanding principal balance of
the Loan, plus (B) to the extent not previously
advanced by Lead Lender or any servicer, fiscal agent or Trustee,
all accrued and unpaid interest on the Loan at a per annum rate
equal to the Interest Rate (exclusive of any Default Rate
Interest), plus (C) all unreimbursed Advances and
unpaid interest thereon and any unpaid interest on any principal
and
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interest advances with respect to the
Loan, plus (D) all currently due and unpaid real estate
taxes and assessments, insurance premiums and, if applicable,
ground rents relating to the Property (less any amounts held in
escrow for such items) over (ii) an amount equal to ninety
percent (90%) of the Collateral Value (net of any liens senior
to the lien of the Mortgage), is less than or equal to
(b) twenty-five percent (25%) of the Note B Principal
Balance.
“ Controlling
Holder ” shall mean the holder of the Controlling
Interest.
“ Controlling
Interest ” shall mean, with respect to the Loan at any
time, (a) Loan B, unless a Control Appraisal Period then
exists, and (b) if a Control Appraisal Period exists, Loan
A.
“ Costs ”
shall mean all out-of-pocket costs, fees (not including any
servicing fees or special servicing fees of any type), expenses,
payments, losses, liabilities, judgments and/or causes of action
reasonably suffered or incurred or paid or to be paid by Lead
Lender pursuant to or in connection with the Loan, the Loan
Documents, the Property, this Agreement or otherwise in connection
with the Loan (but not including any servicing or special servicing
fees of any type) and the servicing, administration and/or
enforcement pursuant to the terms of this Agreement, including,
without limitation, attorneys’ fees and disbursements, real
estate taxes and assessments (and other similar taxes affecting the
Property or any portion thereof), insurance premiums and other
protective advances as more particularly provided in the Loan
Documents, except for those resulting from Lead Lender’s
gross negligence or willful misconduct; provided ,
however , that neither (a) Lead Lender’s
out-of-pocket costs and expenses relating to the origination of the
Loan, (b) Lead Lender’s day-to-day customary and usual,
ordinary costs of servicing and administration nor (c) any
internal or overhead costs of Lead Lender and any special servicing
fees shall be deemed to be “Costs.”
“ Cure Option
Notice ” shall have the meaning assigned to such term in
Section 7.
“ Cure Payment
” shall have the meaning assigned to such term in
Section 7.
“ Defaulted Loan
” shall mean the Loan (a) if the Loan is delinquent
sixty (60) days or more in respect to an applicable scheduled
monthly payment (not including the balloon payment due at maturity)
or (b) if the payments due at maturity are not made upon the
maturity of the Loan or (c) if the maturity of the
indebtedness evidenced by the Promissory Note has been accelerated
by Lead Lender (or any servicer or Trustee on behalf of Lead
Lender) by written notice to Borrower.
“ Defaulted Mortgage
Loan Purchase Price ” shall mean a cash price equal to
the sum of, without duplication, (a) the Note A Principal
Balance, as of the date of purchase, (b) accrued and unpaid
interest thereon (excluding default interest) from the Payment Date
as to which interest was last paid in full by the Borrower up to
and including the end of the Interest Accrual Period relating to
the Payment Date next following the date the purchase occurred at
the Note A Rate; provided , however , prior to the
Securitization Date and in the event that “Defaulted Mortgage
Loan Purchase Price” is being calculated in connection with
the occurrence and continuance of a Control Appraisal Period, such
accrued and unpaid interest shall not include interest accruing on
Note A after the date of purchase, (c) all Advances with
respect to the Loan
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that have not been reimbursed to Lead
Lender or Co-Lender and (d) any other Additional Trust Fund
Expenses in respect of the Loan actually paid or incurred by Lead
Lender; provided , however , that the Defaulted
Mortgage Loan Purchase Price shall not be reduced by any
outstanding principal and interest advance.
“ Delivered Letter
of Credit ” shall have the meaning set forth in
Section 29(b).
“ Final Recovery
Determination ” shall mean a determination by Lead Lender
(or any servicer or Trustee acting on behalf of Lead Lender) that
the Loan is a Defaulted Loan or the Property is REO Property and
that there has been a recovery of all insurance proceeds,
condemnation proceeds, liquidation proceeds and other payments or
recoveries that Lead Lender (or any servicer or Trustee acting on
behalf of Lead Lender) has determined, in accordance with Accepted
Servicing Practices, will be ultimately recoverable.
“ Initial
Co-Lender ” shall mean MW1-2002, LLC, a Delaware limited
liability company.
“ Initial Lead
Lender ” shall mean Wachovia Bank, National Association,
a national banking association.
“ Insolvency
Proceeding ” shall mean any proceeding under the
Bankruptcy Code or any other insolvency, liquidation,
reorganization or other similar proceeding concerning the Borrower,
any action for the dissolution of the Borrower, any proceeding
(judicial or otherwise) concerning the application of the assets of
the Borrower, for the benefit of its creditors, the appointment of
or any proceeding seeking the appointment of a Trustee, receiver or
other similar custodian for all or any substantial part of the
assets of the Borrower or any other action concerning the
adjustment of the debts of the Borrower or the cessation of
business by the Borrower.
“ Intervening Trust
Vehicle ” with respect to any Securitization Vehicle that
is a CDO, shall mean a trust vehicle or entity which holds Note B
as collateral securing (in whole or in part) any obligation or
security held by such Securitization Vehicle as collateral for the
CDO.
“ Lead Lender
” shall mean Initial Lead Lender and any subsequent holder of
Note A.
“ Loan ”
shall have the meaning assigned to such term in the
recitals.
“ Loan A ”
shall have the meaning assigned to such term in the
recitals.
“ Loan B ”
shall have the meaning assigned to such term in the
recitals.
“ Loan Documents
” shall have the meaning assigned to such term in the
recitals.
“ Mortgage
” shall have the meaning assigned to such term in the
recitals.
“ Net Note A
Rate ” shall mean the Note A Rate minus the Note A
Servicing Fee Rate.
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“ Net Note B
Rate ” shall mean the Note B Rate minus the Co-Lender
Servicing Fee Rate.
“ Non-Exempt
Person ” shall have the meaning assigned to such term in
Section 25.
“ Note A Default
Rate ” shall mean the lesser of (a) the highest rate
allowable at law and (b) 5.00% above the Note A
Rate.
“ Note A Principal
Balance ” shall mean, on any date of determination,
$137,000,000 less the sum of any amount previously applied in
reduction of such amount pursuant to Section 2(b) or
Section 2(c) and less any Realized Losses allocated to Note A
pursuant to Section 3(a).
“ Note A Rate
” shall mean the Interest Rate set forth in Note
A.
“ Note A Servicing
Fee ” shall have the meaning assigned such term in
Section 3(a).
“ Note A Servicing
Fee Rate ” shall mean a per annum rate determined by Lead
Lender, but in no event greater than 0.07% per
annum.
“ Note B Default
Rate ” shall mean the lesser of (a) the highest rate
allowable at law and (b) 5.00% above the Note B
Rate.
“ Note B Principal
Balance ” shall mean, on any date of determination,
$20,000,000, less the sum of any amount previously applied in
reduction of such amount pursuant to Section 2(b) or
Section 2(c) and less any Realized Losses allocated to Loan B
pursuant to Section 3(a).
“ Note B Rate
” shall mean the Interest Rate set forth in Note
B.
“ Note B Servicing
Fee ” shall have the meaning assigned such term in
Section 3(a).
“ Operating
Advisor ” shall mean, with respect to the Loan, the
advisor elected pursuant to Section 3(g).
“ Permitted Fund
Manager ” means any Person that on the date of
determination is (i) one of the entities listed on Exhibit
B or any other nationally-recognized manager of investment
funds investing in debt or equity interests relating to commercial
real estate, (ii) investing through a fund with committed
capital of at least $250,000,000 and (iii) not subject to any
proceeding or action under existing or future law of any
jurisdiction relating to bankruptcy, insolvency, reorganization or
relief of debtors.
“ Pooling
Agreement ” shall mean from and after the Securitization
Date, the pooling and servicing agreement, trust and servicing
agreement or similar agreement executed in connection with the
Securitization of Note A ( provided that the terms of such
agreement shall meet the requirements set forth in
Section 3(c)).
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“ Prepayment
Premium ” shall mean, with respect to the Loan, any
prepayment premium, spread maintenance premium, yield maintenance
premium or any similar fee or charge required to be paid in
connection with a prepayment of the Loan.
“ Prime Rate
” shall mean the “Prime Rate” in effect from time
to time (as published in the “Money Rates” section of
The Wall Street Journal or, if such section or publication no
longer is available, such other publication as determined by Lead
Lender in its reasonable discretion).
“ Promissory
Note ” shall have the meaning assigned to such term in
the recitals.
“ Property
” shall have the meaning assigned to such term in the
recitals.
“ Qualified
Institutional Lender ” shall mean: (x) Initial
Co-Lender and Initial Lead Lender and (y):
(a) one or more of the
following:
(i) an insurance company,
bank, savings and loan association, investment bank, trust company,
commercial credit corporation, pension plan, pension fund, pension
fund advisory firm, mutual fund, real estate investment trust or
governmental entity or plan; or
(ii) an investment company,
money management firm or a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities
Act of 1933, as amended; or
(iii) a Qualified Trustee (or
in the case of a CDO, a single-purpose bankruptcy-remote entity
which contemporaneously pledges its interest in Note B to a
Qualified Trustee) in connection with (A) a securitization of,
(B) the creation of collateralized debt obligations (“
CDO ”) secured by, or (C) a financing through an
“owner trust” of, Note B or any interest therein (any
of the foregoing, a “ Securitization Vehicle ”),
provided that (1) one or more classes of securities issued by
such Securitization Vehicle is initially rated at least investment
grade by each of the Rating Agencies which assigned a rating to one
or more classes of securities issued in connection with a
Securitization (it being understood that with respect to any Rating
Agency that assigned such a rating to the securities issued by such
Securitization Vehicle, a Rating Agency Confirmation will not be
required in connection with a transfer of Note B or any interest
therein to such Securitization Vehicle; (2) in the case of a
Securitization Vehicle that is not a CDO, the special servicer of
such Securitization Vehicle is a Qualified Servicer at the time of
Transfer and the related transaction documents for such
Securitization Vehicle require that any successor be a Qualified
Servicer (such entity, an “ Approved Servicer ”)
and such Approved Servicer is required to service and administer
Note B or any interest therein in accordance with
servicing
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arrangements for the assets
held by the Securitization Vehicle which require that such Approved
Servicer act in accordance with a servicing standard
notwithstanding any contrary direction or instruction from any
other Person; or (3) in the case of a Securitization Vehicle
that is a CDO, the CDO Asset Manager and, if applicable, each
Intervening Trust Vehicle that is not administered and managed by a
Qualified Trustee or CDO Asset Manager which is a Qualified
Institutional Lender, are each a Qualified Institutional Lender
under clauses (a)(i), (a)(ii) or (a)(v) of this definition;
or
(iv) an investment fund,
limited liability company, limited partnership or general
partnership in which a Permitted Fund Manager acts as the general
partner, managing member, Controlling Member, or the fund manager
responsible for the day to day management and operation of such
investment vehicle and provided that greater than fifty percent
(50%) of the equity interests in such investment vehicle are
owned, directly or indirectly, by one or more entities that are
otherwise Qualified Institutional Lenders; or
(v) an institution
substantially similar to any of the foregoing described in clauses
(a)(i), (a)(ii) or (a)(iv) above;
which, in the case of each of
clauses (a)(i), (ii), (iii)(3), (iv) or (v) of this
definition, has at least $600,000,000 in total assets (in name or
under management) and (except with respect to a pension advisory
firm or similar fiduciary) at least $200,000,000 in
capital/statutory surplus or shareholders’ equity (which, in
the case of clause (iv) above may be satisfied by the assets
and capital/statutory surplus or shareholders’ equity (which,
in the case of clause (iv) above may be satisfied by the
assets and capital/statutory surplus or shareholders’ equity
of the Permitted Fund Manager), and is regularly engaged in the
business of making or owning commercial real estate loans or
commercial loans (or interests therein) similar to the Loan;
or
(b) any entity Controlled (as
defined below) by or Controlling, or under common Control with, the
holder of the related promissory note (i.e., Note A or Note B) or
any of the entities described in clause (a) above.
For purposes of this
definition only, “Control” means the ownership,
directly or indirectly, in the aggregate of more than fifty percent
(50%) of the beneficial ownership interests of an entity and
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of an entity,
whether through the ability to exercise voting power, by contract
or otherwise, and “Controlled” and
“Controlling” have the meaning correlative
thereto.
“ Qualified
Servicer ” shall mean any nationally recognized
commercial mortgage loan servicer (other than Keycorp Real Estate
Capital Markets, Inc. or any of its affiliates) (i) rated at
least “Css2,” in the case of a special servicer, or at
least “Css2,” in the case of a master servicer, by
Fitch, (ii) on the S&P Select Servicer List as a U.S.
Commercial Mortgage Master Servicer or a U.S. Commercial Mortgage
Special Servicer, as applicable, and (iii) if such master
servicer or special servicer, as applicable, is acting as master
servicer or special servicer, as
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applicable, in a commercial mortgage
loan securitization that was rated by Moody’s within the
twelve (12) month period prior to the date of determination,
Moody’s has not downgraded or withdrawn the then-current
rating on any class of commercial mortgage securities or placed any
class of commercial mortgage securities on watch citing the
continuation of such master servicer or special servicer as master
servicer or special servicer, as applicable, of such commercial
mortgage securities.
“ Qualified
Trustee ” shall mean (i) a corporation, national
bank, national banking association or a trust company, organized
and doing business under the laws of any state or the United States
of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state authority or (ii) an
institution whose long-term senior unsecured debt is rated in
either of the then in effect top two rating categories of each of
the Rating Agencies.
“ Rating Agency
Confirmation ” shall mean, at any time that Loan A or any
portion thereof is an asset of the Securitization, a written
confirmation from each Rating Agency that its credit rating of each
class of the securities issued under the Pooling Agreement to which
it has assigned a rating, immediately prior to the occurrence of
the event with respect to which such Rating Agency Confirmation is
sought, will not be qualified, downgraded or withdrawn as a result
of the occurrence of such event, which confirmation may be granted
or withheld in such Rating Agency’s sole and absolute
discretion.
“ Realized Loss
” shall mean, with respect to a Defaulted Loan: (a) if a
Final Recovery Determination has been made, an amount (not less
than zero) equal to (i) (A) the unpaid principal balance
of the Loan as of the commencement of the Interest Accrual Period
in which the Final Recovery Determination was made, plus
(B) without taking into account the amount described in
subclause (a)(ii) of this definition, all accrued but unpaid
interest on the Loan at the related interest rate through the end
of the Interest Accrual Period in which the Final Recovery
Determination was made (exclusive of any portion thereof that
constitutes default interest in excess of the mortgage rate, late
charges or Prepayment Premiums), plus (C) any related
unreimbursed servicing advances through the end of the Interest
Accrual Period in which the Final Recovery Determination was made
and any interest on such servicing advances and any interest on any
principal and interest advances with respect to Loan A or Loan B,
as applicable, minus (ii) all payments and proceeds, if any,
received with respect to the Loan through the end of the Interest
Accrual Period in which such Final Recovery Determination was made;
(b) if any portion of the principal or previously accrued
interest (other than default interest in excess of the mortgage
rate or Prepayment Premiums) payable thereunder was canceled in
connection with a bankruptcy or similar proceeding involving
Borrower or a modification, waiver or amendment of the Loan granted
or agreed to by Lead Lender (or any servicer or Trustee acting on
behalf of Lead Lender), the amount of such principal and/or
interest so canceled; and (c) if the interest rate relating to
the Loan has been permanently reduced and not recaptured for any
period in connection with a bankruptcy or similar proceeding
involving Borrower or a modification, waiver or amendment of the
Defaulted Loan granted or agreed to by Lead Lender (or any servicer
or Trustee acting on behalf of Lead Lender), the amount of the
consequent reduction in the interest portion of each successive
periodic payment due thereon. Each Realized Loss shall be deemed to
have been incurred on the Payment Date for each affected periodic
payment.
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“ REMIC ”
shall have the meaning assigned to such term in
Section 3(l).
“ REMIC
Provisions ” shall mean provisions of the federal income
tax law relating to real estate mortgage investment conduits, which
appear at Sections 860A through 860G of subchapter M of Chapter 1
of the Code, and related provisions, and regulations (including any
applicable proposed regulations) and rulings promulgated
thereunder, as the foregoing may be in effect from time to
time.
“ REO Property
” shall mean the Property to which title has been acquired on
behalf of Lead Lender and Co-Lender through foreclosure, delivery
of a deed in lieu of foreclosure or otherwise.
“ Repurchase
Date ” shall have the meaning assigned to such term in
Section 6.
“ Repurchase
Notice ” shall have the meaning assigned to such term in
Section 6.
“ Reserve
Collateral ” shall have the meaning set forth in
Section 29.
“ Securitization
” shall mean the transaction or transactions pursuant to
which Lead Lender will transfer Loan A (subject to the rights of
Co-Lender hereunder) in connection with a securitization to a
Trustee pursuant to the Pooling Agreement creating a trust fund
which will issue certificates which will, among other things,
represent an undivided interest in Loan A and one (1) or more
other mortgage loans or participation or other interests
therein.
“ Securitization
Date ” shall mean the closing date on which a
Securitization is consummated.
“ Securitization
Trust ” shall mean the trust or trusts formed pursuant to
a Securitization pursuant to which Loan A or any portion thereof is
held.
“ Servicer
” shall mean Lead Lender or any servicer that is servicing
the Loan on behalf of Lead Lender.
“ Servicing Event of
Default ” shall mean any one of the following
events:
(a) any failure by Lead
Lender to remit to Co-Lender any amount required to be so remitted
by Lead Lender in servicing the Loan pursuant to, and at the time
specified by, the terms of this Agreement, and such failure
continues unremedied for more than three (3) Business Days
after the date on which the remittance was due;
(b) any failure on the part
of Lead Lender to (i) abide by Accepted Servicing Practices or
(ii) observe or perform in any material respect any other of
the material covenants or agreements of Lead Lender relating to the
servicing of the Loan under this Agreement, which, in either case,
continues unremedied for a period of 30 days (or 60 days, so long
as Lead Lender promptly commences and diligently proceeds with
pursuing a cure in good faith) after the date on which written
notice of such failure, requiring the same to be remedied, shall
have been given to Lead Lender by Co-Lender;
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(c) the entry of a decree or
order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings against Lead Lender
or for the winding-up or liquidation of the affairs of Lead Lender
and such decree or order remains unstayed and in effect for a
period of 60 days;
(d) the consent by Lead
Lender to the appointment of a conservator or receiver or
liquidator or liquidating committee in any insolvency, readjustment
of debt, marshalling of assets and liabilities, voluntary
liquidation or similar proceedings of or relating to Lead Lender or
relating to all or substantially all of the property of Lead
Lender;
(e) the admission by Lead
Lender in writing of its inability to pay its debts generally as
they become due, the filing by Lead Lender of a petition to take
advantage of any applicable insolvency or reorganization statute,
the making by Lead Lender of an assignment for the benefit of its
creditors or the voluntary suspension by Lead Lender of payment of
substantially all of its obligations; or
(f) the servicer acting on
behalf of Lead Lender no longer qualifies as a Qualified Servicer
and such failure to qualify is not cured within thirty
(30) days of notice thereof to Lead Lender and
Co-Lender.
“ Special Event of
Default ” shall mean (a) a monetary Event of Default
or (b) a non-monetary Event of Default with respect to which
the Loan becomes a Specially Serviced Mortgage Loan.
“ Special
Servicer ” shall have the meaning assigned to such term
in Section 3(n).
“ Specially Serviced
Mortgage Loan ” shall mean, with respect to the Loan,
when any one of the following has occurred:
(a) a payment default
occurred at its maturity date (as extended pursuant to the
applicable Loan Documents, if applicable), which was not extended
by Lead Lender (subject to the Operating Advisor’s consent
when required under Section 3(h)) within 60 days following its
maturity;
(b) the Borrower has failed
to make any two consecutive scheduled interest payments which
remain delinquent;
(c) the Borrower has entered
into or consented to any Insolvency Proceeding, or the Borrower has
become the subject of a decree or order for such a proceeding that
shall have remained in full force, undischarged or unstayed for a
period of 60 days;
(d) Lead Lender shall have
received notice of the foreclosure or proposed foreclosure of any
other lien on the Property;
11
(e) to the knowledge of Lead
Lender (consistent with Accepted Servicing Practices after a
non-binding consultation with the Operating Advisor), a material
default under the Loan Documents (which for the purposes of this
clause (e) shall not include the failure to maintain insurance
against acts of terrorism if the servicer is not required to
maintain such insurance pursuant to the terms of the Pooling
Agreement) has occurred, or is imminent, and is not likely to be
cured by the Borrower within 60 days thereafter;
(f) the Borrower admits in
writing its inability to pay its debts generally as they become
due, makes an assignment for the benefit of its creditors or
voluntarily suspends payment of its obligations;
(g) Lead Lender receives
notice that the Borrower intends to violate or has violated any
“due-on-sale” or “due-on-encumbrance”
clause in the Mortgage;
(h) any other default occurs
that, in the reasonable judgment of Lead Lender exercised in
accordance with Accepted Servicing Practices, materially impairs,
or is reasonably likely to materially impair, the use or
marketability of the Property or the value thereof as security for
the Loan; or
(i) there have been four
consecutive interest advances on behalf of the Borrower;
provided , however , that
a Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with respect to clauses
(a) and (b) above, when the Loan becomes a performing
Loan for at least 90 consecutive days, in accordance with its
original terms or as modified in accordance with this Agreement;
or
(ii) with respect to clauses
(c), (d), (e), (f), (g), (h) or (i) above, when such
event specified has been remedied, cured or otherwise
resolved;
provided , further , that,
subject to Section 3(c), from and after the occurrence of a
Securitization, “ Specially Serviced Mortgage Loan
” shall have the same meaning as the analogous definition set
forth in the Pooling Agreement.
“ Taxes ”
shall have the meaning assigned to such term in
Section 25.
“ Transfer
” shall have the meaning assigned such term in
Section 15.
“ Trigger Event
” shall have the meaning assigned to such term in
Section 3(k).
“ Trustee
” shall have the meaning assigned to such term in
Section 3(n).
2. Contribution of Loan B;
Payments to Lead Lender and Co-Lender .
(a) Lead Lender hereby
contributes Loan B to Co-Lender as a capital contribution.
Thereafter, Co-Lender shall be deemed the owner of Note B. Use of
the terms Note A Principal Balance and Note B Principal Balance are
merely for convenience in determining the economic interests of the
parties.
12
(b) Provided no Special Event
of Default has occurred and is continuing (provided that for
purposes of determining whether a Special Event of Default has
occurred in this Section 2(b), a monetary Event of Default
shall not be considered a Special Event of Default if such default
is cured by the payment of a Cure Payment pursuant to
Section 7 hereof and a non-monetary Event of Default shall not
be considered a Special Event of Default if the time periods for
cure of such non-monetary Event of Default by Co-Lender (if such
default is susceptible to cure by Co-Lender) shall not have passed
without such non-monetary Event of Default being cured pursuant to
Section 7, after payment or reimbursement of the Note A
Servicing Fee, the Note B Servicing Fee, any Additional Trust Fund
Expenses, Costs and Advances and principal and/or interest advances
made by Lead Lender or any servicer, trustee or fiscal agent (each,
without duplication), in each case to the extent provided for in
the Pooling Agreement while the Loan is being serviced pursuant to
the Pooling Agreement, all payments and proceeds (of whatever
nature) received with respect to the Loan (including amounts
received by the master servicer or Special Servicer pursuant to the
Pooling Agreement, but excluding any amounts for required reserves
or escrows required by the Loan Documents and proceeds, awards or
settlements to be applied to the restoration or repair of the
Property or released to the Borrower in accordance with the terms
of the Loan Documents) will be applied in the following order of
priority:
(i) first , to Lead
Lender in an amount equal to the accrued and unpaid interest on the
Note A Principal Balance at the Net Note A Rate through the end of
the related Interest Accrual Period;
(ii) second , to Lead
Lender (A) in an amount equal to its pro rata (based
upon the Note A Principal Balance and the Note B Principal Balance)
portion of the principal balance of the Loan which is due and
payable pursuant to the Loan Documents, if any, together with
(B) all prepayments to the extent actually paid, including,
without limitation, Loss Proceeds applied to the repayment of the
Loan, in an amount equal to Lead Lender’s pro rata (based
upon the Note A Principal Balance and the Note B Principal Balance,
respectively) portion of the principal balance of the
Loan;
(iii) third , to Lead
Lender any unreimbursed Realized Losses previously allocated to
Note A;
(iv) fourth , to
Co-Lender in an amount equal to any unreimbursed Cure Payments and
Advances made by Co-Lender pursuant to Section 5(b) which are
reimbursed by Borrower,
(v) fifth , to
Co-Lender in an amount equal to the accrued and unpaid interest on
the Note B Principal Balance at the Net Note B Rate through the end
of the related Interest Accrual Period;
(vi) sixth , to
Co-Lender (A) in an amount equal to its pro rata (based
upon the Note A Principal Balance and the Note B Principal Balance,
respectively),
13
portion of the principal
balance of the Loan which is due and payable pursuant to the Loan
Documents, together with (B) all prepayments to the extent
actually paid, including, without limitation, Loss Proceeds applied
to the repayment of the Loan, in an amount equal to
Co-Lender’s pro rata (based upon the Note A Principal Balance
and the Note B Principal Balance, respectively) portion of the
principal balance of the Loan;
(vii) seventh , to
Co-Lender any unreimbursed Realized Losses previously allocated to
Note B;
(viii) eighth , to
Lead Lender and Co-Lender, pro rata (based upon the Note A
Principal Balance and the Note B Principal Balance, respectively),
in an amount equal to the Prepayment Premium or Exit Fee, to the
extent actually paid, allocable to the Loan;
(ix) ninth , to Lead
Lender and Co-Lender, pro rata (based upon the Note A
Principal Balance and the Note B Principal Balance, respectively),
in an amount equal to any extension fees, to the extent actually
paid, allocable to the Loan;
(x) tenth , to Lead
Lender in an amount equal to any default interest (in excess of the
interest paid in accordance with Section 2(b)(i)) on the Note
A Principal Balance calculated at the Note A Default Rate;
provided, however, that any default interest which accrued during
any and all periods for which Co-Lender made Cure Payments in
accordance with Section 7(a) hereof shall instead be paid to
Co-Lender;
(xi) eleventh , to
Co-Lender in an amount equal to any default interest (in excess of
the interest paid in accordance with Section 2(b)(v)) on the
Note B Principal Balance calculated at the Note B Default
Rate;
(xii) twelfth , to
Lead Lender and Co-Lender, in that order, any accrued and unpaid
interest on Realized Losses allocated to Note A and Note B
calculated at the applicable Note A Rate and Note B Rate from the
date such Realized Loss was allocated to such interest through the
date such Realized Loss was reimbursed; and
(xiii) thirteenth ,
any excess, pro rata , to Lead Lender and Co-Lender (based
upon the initial Note A Principal Balance and the initial Note B
Principal Balance, respectively).
(c) Following the occurrence
and during the continuance of a Special Event of Default (provided
that for purposes of determining whether a Special Event of Default
has occurred in this Section 2(c) a monetary Event of Default
shall not be considered a Special Event of Default if such default
is cured by the payment of a Cure Payment pursuant to
Section 7 hereof and a non-monetary Event of Default shall not
be considered a Special Event of Default if the time periods for
cure of such non-monetary Event of Default by Co-Lender (if such
default is susceptible to cure by Co-Lender) shall not have passed
without such non-monetary Event of Default being cured pursuant to
Section 7, after payment or reimbursement of the Note A
Servicing Fee, the Note B Servicing Fee, any Additional Trust Fund
Expenses, Costs and/or Advances (each, without duplication, in each
case to the extent provided for in the Pooling Agreement while the
Loan is being serviced pursuant to the Pooling Agreement), all
payments
14
and proceeds (of whatever nature)
received with respect to Note B will be subordinated (subject to
the terms hereof) to all payments due with respect to Note A and
the amounts received with respect to the Loan (including amounts
received by the master servicer or Special Servicer pursuant to the
Pooling Agreement, but excluding any amounts for required reserves
or escrows required by the Loan Documents and proceeds, awards or
settlements to be applied to the restoration or repair of the
Property or released to the Borrower in accordance with the terms
of the Loan Documents), and all payments and proceeds (of whatever
nature, including, without limitation, net operating income from
the REO Property and any net liquidation proceeds from the REO
Property) received with respect to the Loan will be applied in the
following order of priority:
(i) first , to Lead
Lender, in an amount equal to accrued and unpaid interest on the
Note A Principal Balance at the Net Note A Rate through the end of
the related Interest Accrual Period;
(ii) second , to Lead
Lender, in an amount equal to the Note A Principal Balance until
paid in full;
(iii) third , to Lead
Lender, any unreimbursed Realized Losses previously allocated to
Note A;
(iv) fourth , to
Co-Lender in an amount equal to accrued and unpaid interest on the
Note B Principal Balance at the Net Note B Rate through the end of
the related Interest Accrual Period;
(v) fifth , to
Co-Lender, in an amount equal to the Note B Principal Balance until
paid in full;
(vi) sixth , to
Co-Lender any unreimbursed Realized Losses previously allocated to
Note B;
(vii) seventh , to
Lead Lender, in an amount equal to the portion of any Prepayment
Premium, to the extent actually paid, allocable to Note A (based
upon the ratio between the initial Note A Principal Balance and the
initial Note B Principal Balance);
(viii) eighth , to
Co-Lender, in an amount equal to the portion of any Prepayment
Premium, to the extent actually paid, allocable to Note B (based
upon the ratio between the initial Note A Principal Balance and the
initial Note B Principal Balance);
(ix) ninth , to Lead
Lender in an amount equal to the full Exit Fee, to the extent
actually paid;
(x) tenth , to Lead
Lender, in an amount equal to the portion of any extension fees, to
the extent actually paid, allocable to Note A (based upon the ratio
between the initial Note A Principal Balance and the initial Note B
Principal Balance);
15
(xi) eleventh , to
Co-Lender in an amount equal to the portion of any extension fees,
to the extent actually paid, allocable to Note B (based upon the
ratio between the initial Note A Principal Balance and the initial
Note B Principal Balance);
(xii) twelfth , to
Lead Lender in an amount equal to any default interest (in excess
of the interest paid in accordance with Section 2(c)(i)) on
the Note A Principal Balance calculated at the Note A Default
Rate;
(xiii) thirteenth , to
Co-Lender in an amount equal to any default interest (in excess of
the interest paid in accordance with Section 2(c)(iii)) on the
Note B Principal Balance calculated at the Note B Default
Rate;
(xiv) fourteenth , to
Co-Lender in an amount equal to any unreimbursed Cure Payments or
any unreimbursed Costs (including Advances) paid or reimbursed by
Co-Lender with respect to the Loan pursuant to this Agreement;
and
(xv) fifteenth , any
excess, pro rata , to Lead Lender and Co-Lender (based upon
the initial Note A Principal Balance and the initial Note B
Principal Balance, respectively).
3. Administration of the
Loan Generally .
(a) Lead Lender shall
administer the Loan in a manner consistent with Accepted Servicing
Practices. Notwithstanding the foregoing, Lead Lender and Co-Lender
shall have the right, subject to the provisions of Section 15,
to assign in whole or in part Loan A and Loan B, as the case may
be, and their respective rights under this Agreement and their
respective obligations hereunder or thereunder to any Person other
than the Borrower or any Affiliate of the Borrower and, subject to
Section 15, to sell participation interests in all or any
portion of Loan A and Loan B, as the case may be, to any Person
other than the Borrower or any Affiliate of the Borrower. Lead
Lender shall distribute or cause to be distributed to Co-Lender,
within two (2) Business Days after the applicable Payment Date
(or, after the Securitization Date, within such longer period of
time as is provided in the Pooling Agreement; provided, that in no
event shall such period exceed three (3) Business Days after
the applicable Payment Date), all payments due to Co-Lender with
respect to Loan B, to the extent that funds received in respect of
the Loan are allocated to amounts due with respect to Loan B in
accordance with Sections 2(b) or 2(c); provided ,
however , that prior to calculating any amount of interest,
principal or other amounts due on such date to Co-Lender, Lead
Lender shall allocate any Realized Losses with respect to the Loan,
to reduce the Note B Principal Balance (not below zero) and,
thereafter, to reduce the Note A Principal Balance (not below zero)
by any Realized Losses. In consideration for servicing the Loan,
Lead Lender shall retain from sums otherwise allocable to Lead
Lender and Loan A monthly on each Payment Date a servicing fee in
the amount of the Note A Servicing Fee Rate multiplied by the Note
A Principal Balance (the “ Note A Servicing Fee
”). In consideration of servicing the Loan and Loan B,
Co-Lender shall pay monthly on each Payment Date to Lead Lender
(which may also be retained from distributions due to Co-Lender
hereunder pursuant to Section 2(b) or 2(c)) a servicing fee in
the amount of the Co-Lender Servicing Fee Rate multiplied by the
Note B Principal Balance (the “ Note B Servicing Fee
”). Each of the Note A Servicing Fee and the Note B Servicing
Fee shall be paid on the same basis and for the same
16
period of time that interest is paid on
the Loan. From and after Securitization, the Note A Servicing Fee
and the Note B Servicing Fee may be adjusted by Lead Lender in its
sole discretion (including, without limitation, after the
Securitization Date, the addition of a Trustee or similar fee)
provided that the Note B Servicing Fee (in each case, inclusive of
any Trustee or similar fee) after such adjustment shall not exceed
in the aggregate 0.015% per annum; provided ,
further , however , that the Note A Servicing Fee and
any Trustee or similar fees after such adjustment shall be at a
market rate consistent with similar transactions.
(b) (i) Prior to the
Securitization Date, in servicing and administering of the Loan,
Lead Lender shall perform and discharge the following duties to the
extent consistent with Accepted Servicing Practices:
(A) Lead Lender shall use
reasonable efforts, including requesting a certification from the
Borrower at least annually, to determine whether the Borrower is
complying with the requirements of Section 2.4 of the Mortgage
within the time frames set forth therein. Lead Lender shall report
to Co-Lender any non-compliance as promptly as reasonably
practicable.
(B) Intentionally
omitted.
(C) In connection with any
proposed contractual extension of the maturity date pursuant to the
terms and conditions of the Promissory Note, Lead Lender shall use
reasonable efforts to determine whether the Borrower satisfies all
the requisite conditions precedent to any such extension and shall
promptly report to Co-Lender in writing whether such conditions
have been satisfied.
(D) Intentionally
Omitted.
(E) Lead Lender shall provide
to Co-Lender on a weekly basis a reconciliation of the Sub-Accounts
of the Central Account and a report of account balances in all
Escrow Accounts.
(F) Intentionally
Omitted.
(G) Lead Lender shall review
the operating statements, financial statements and budgets
delivered by the Borrower pursuant to Section 2.14 of the
Mortgage as promptly as reasonably practicable and will promptly
advise Co-Lender in writing of any material adverse change from
prior statements or budgets or any apparent violation of the
provisions of the Mortgage shown by the information set forth on
the statements and budgets. Promptly after its receipt of the
operating statements, financial statements or budgets delivered by
the Borrower pursuant to Section 2.14 of the Mortgage, Lead
Lender shall deliver copies of the same to Co-Lender.
(H) Lead Lender shall deliver
to Co-Lender a statement on or before each remittance date under
this Agreement reflecting Lead Lender’s calculation of the
payment due to Co-Lender under the terms of the Loan
Documents.
17
(I) Lead Lender shall keep
and maintain accounting records reasonably acceptable to Co-Lender,
upon which shall be recorded all amounts payable to Co-Lender
pursuant to the terms of the Loan Documents. Such accounting
records shall at all times reflect the current and correct
outstanding principal balance of Note A and Note B and may be
prepared manually, electromechanically or electronically, or by any
combination of such methods; provided , that the method of
accounting utilized by Lead Lender shall record historical data,
current principal, and other required statistical information in
such manner as may be exhibited to Co-Lender in visible form. In
addition, Lead Lender shall keep, and furnish copies thereof to
Co-Lender upon request, records setting forth the interest rate
payable on the Note B Principal Balance during each Interest
Accrual Period relating to the Loan and the calculation of the
amount of interest (and, if applicable, principal) payable to
Co-Lender during such Interest Accrual Period. Co-Lender shall have
the right upon reasonable notice to Lead Lender, at any reasonable
time during normal business hours and at Co-Lender’s expense,
but without charge, to have access to and to examine Lead
Lender’s books and records relating to Loan A, Loan B, the
Loan Documents and the Property.
(J) Lead Lender shall keep
and maintain records, and shall keep all filings current, with
respect to any UCC financing statements filed in connection with
the Loan.
(K) Lead Lender acknowledges
and agrees that Lead Lender shall direct the Bank to disburse funds
from the Central Account pursuant to this Agreement and Article III
of the Mortgage and shall promptly provide copies of all
correspondence sent by Lead Lender to the Bank, or by the Bank to
Lead Lender, including without limitation all disbursement
instructions and statements received from the Bank in connection
with the Central Account and the Sub-Accounts thereof to
Co-Lender.
(L) Lead Lender shall notify
the Borrower and Co-Lender of any deficiencies in the required
Sub-Accounts of the Central Account three (3) Business Days
prior to each Payment Date.
(ii) Lead Lender shall use
its commercially reasonable efforts to have the Pooling Agreement
include provisions substantially similar to those contained in
Section 3(b)(i) relating to the substance thereof after the
Securitization Date.
(c) Upon the consummation of
the Securitization, Co-Lender acknowledges and agrees that the
Pooling Agreement relating to the Securitization will govern the
terms of the servicing and administration of the Loan;
provided , that such Pooling Agreement shall contain
provisions regarding the rights of Co-Lender which are the same as
or more favorable to Co-Lender (other than those that are
applicable only prior to the Securitization), in substance, to
the
18
provisions set forth herein; and,
provided , further , that the Pooling Agreement will
provide that the master servicer and Special Servicer shall service
the Loan in accordance with Accepted Servicing Practices. At any
time after the Securitization Date that Loan A is no longer subject
to the provisions of the Pooling Agreement, Lead Lender shall cause
the Loan to be serviced pursuant to a servicing agreement that
contains servicing provisions which are the same as or more
favorable to Co-Lender, in substance, to those in the Pooling
Agreement and all references herein to the “Pooling
Agreement” shall mean such subsequent servicing agreement;
provided , however , that until a replacement
servicing agreement has been entered into, Lead Lender shall cause
the Loan to be serviced in accordance with the servicing provisions
set forth in the Pooling Agreement as if such agreement was still
in full force and effect with respect to the Loan; provided
, further , however , that until a replacement
servicing agreement is in place, the actual servicing of the Loan
may be performed by any Qualified Servicer appointed by Lead Lender
and does not have to be performed by the service providers set
forth under the Pooling Agreement. Notwithstanding anything to the
contrary contained herein, in accordance with the Pooling
Agreement, Lead Lender shall cause the master servicer and the
Special Servicer to service and administer the Loan in accordance
with Accepted Servicing Practices, taking into account the
interests of both Lead Lender and Co-Lender (as a collective whole)
(it being understood that the interest of Co-Lender is junior to
Loan A, subject to the terms and conditions of this Agreement), and
any Co-Lender which is not the Borrower or an Affiliate of the
Borrower shall be deemed a third party beneficiary of such
provisions of the Pooling Agreement.
(d) Subject to the terms of
this Agreement, Lead Lender shall have the exclusive right and
obligation to administer the Loan on behalf of Lead Lender and
Co-Lender and to enforce the Loan Documents, including, without
limitation, the right to collect all payments due thereunder. All
sums received by Lead Lender with respect to the Loan shall be held
by Lead Lender in custody on behalf of Lead Lender and Co-Lender
and shall be distributed pursuant to the terms and provisions of
this Agreement. Subject to the other terms and provisions of this
Agreement, Lead Lender reserves the right, and Co-Lender
acknowledges that Lead Lender has the sole and exclusive authority,
to (i) modify or waive any of the terms of the Loan Documents,
(ii) consent to any action or failure to act by the Borrower
or any party to the Loan Documents, (iii) vote all claims with
respect to the Loan in any bankruptcy, insolvency or similar
proceedings, whether voluntary or involuntary including the right
to approve or reject any plan of reorganization, and (iv) take
legal action to enforce or protect Lead Lender’s and
Co-Lender’s interests with respect to the Loan or to exercise
or refrain from exercising any powers or rights which Lead Lender
may have under the Loan Documents, including, without limitation,
the right at any time to accelerate, or refrain from accelerating,
the Loan, to foreclose and sell and otherwise deal with the
Property, or refrain from foreclosing, selling or otherwise dealing
with the Property, and to enforce or refrain from enforcing the
Loan Documents. Lead Lender shall exercise such rights and powers
(subject to the other provisions of this Section 3, including,
without limitation, Section 3(h)) on the understanding that
(A) Lead Lender may (subject to the other provisions of this
Agreement, including, without limitation, Section 3(h)) use
its sole discretion with respect to exercising or refraining from
exercising any rights, or taking or refraining from taking any
actions, which may be vested in Lead Lender or which Lead Lender
may be entitled to take or assert under or in respect of any of the
Loan Documents, including rights and actions relating to any waiver
or amendment of any term thereof, (B) Lead Lender will give
the same degree of care to the administration of the Loan as is
consistent with Accepted Servicing Practices, (C) Lead Lender
shall not be liable to Co-Lender with respect to Loan B
19
including, without limitation, any sums
due with respect to Loan B, except with respect to losses actually
suffered by Co-Lender due to a breach of this Agreement by Lead
Lender or due to the gross negligence or willful misconduct, or, if
provided in the Pooling Agreement, negligence and willful
misconduct, on the part of Lead Lender, (D) the interests of
Co-Lender in the Loan are junior to the interests of Lead Lender in
the Loan and any proceeds thereof, in accordance with the terms of
this Agreement, and (E) Lead Lender may accept deposits from
the Borrower or any other Person having obligations relating to the
Loan. Without limiting the generality of the foregoing, Lead Lender
(x) may rely upon the advice of legal counsel, accountants and
other experts (including those retained by the Borrower) and upon
any written communication or any telephone conversation which Lead
Lender believes in good faith to be genuine and correct or to have
been signed, sent or made by the proper Person; (y) shall not
be required to make any inquiry concerning the performance by the
Borrower or any other Person of any of its obligations and
liabilities under or relating to the Loan; and (z) shall have
no obligation to make any claim against, or to assert any lien
upon, any property held by Lead Lender other than the Property or
to assert any offset there against.
(e) Notwithstanding anything
to the contrary set forth in this Agreement, in no event will Lead
Lender (or any servicer on behalf of Lead Lender) be permitted to
take any action or refrain from taking any action which would
violate any law of any applicable jurisdiction, breach the related
Loan Documents, be inconsistent with Accepted Servicing Practices
or violate any provisions of this Agreement or the Pooling
Agreement.
(f) Lead Lender shall
prepare, or shall cause the Special Servicer to prepare, a report
(the “ Asset Status Report ”) for the Loan when
it becomes a Specially Serviced Mortgage Loan not later than 30
days after the Loan becomes a Specially Serviced Mortgage Loan or,
after the Securitization Date, not later than 30 days after the
servicing of the Loan is transferred to any Special Servicer (or,
after the Securitization Date, within such longer period of time,
not to exceed 45 days in any case, as is provided for in the
Pooling Agreement). Each Asset Status Report will be delivered upon
preparation in electronic format to Co-Lender, the Operating
Advisor and, if required under the Pooling Agreement, the Rating
Agencies. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of
such Specially Serviced Mortgage Loan and any negotiations with the
Borrower;
(ii) a discussion of the
legal and environmental considerations reasonably known at such
time to Lead Lender or Special Servicer, as applicable, consistent
with Accepted Servicing Practices, that are applicable to the
exercise of remedies as aforesaid and to the e
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