UNDER THE SALE AGREEMENT AND THE LRPA (INCLUDING THE RIGHT TO
WITHDRAW FUNDS FROM THE COLLECTION ACCOUNT TO THE EXTENT PERMITTED UNDER
SECTION 6.11 OF THE LRPA), AND SHALL BE SUBJECT TO ALL THE RESPONSIBILITIES,
DUTIES AND LIABILITIES OF THE SERVICER PURSUANT TO EACH OF THE SALE AGREEMENT
AND THE LRPA; PROVIDED, HOWEVER, THAT BNY ASSET SOLUTIONS LLC, SHALL NOT BE
RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY WITH RESPECT TO, THE ACTS OR
OMISSIONS OF THE SERVICER OR ANY PRIOR SERVICER OCCURRING PRIOR TO THE TIME THAT
BNY ASSET SOLUTIONS LLC BECOMES THE SERVICER UNDER THE SALE AGREEMENT AND THE
LRPA; AND, PROVIDED FURTHER, THAT BEFORE BECOMING SUBJECT TO ALL THE
RESPONSIBILITIES, DUTIES AND LIABILITIES OF THE SERVICER UNDER THE SALE
AGREEMENT AND THE LRPA, THE BACK-UP SERVICER MAY REQUIRE THAT SATISFACTORY
INDEMNITY OR OTHER SECURITY BE FURNISHED TO PROTECT IT AGAINST ALL LIABILITY,
EXCEPT LIABILITY WHICH IS ADJUDICATED TO HAVE RESULTED FROM ITS GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT.
AS COMPENSATION FOR ITS ACTIVITIES AS SERVICER, THE
BACK-UP SERVICER SHALL BE ENTITLED TO THE SERVICING FEE, PAYABLE OUT OF THE
COLLECTION ACCOUNT.
6
(B)
IF THE BACK-UP SERVICER SHALL BECOME THE SERVICER UNDER
THE SALE AGREEMENT AND THE LRPA, THE BACK-UP SERVICER SHALL SERVICE AND
ADMINISTER THE PURCHASED RECEIVABLES AND THE OTHER PURCHASED ASSETS AND PERFORM
ALL OF ITS DUTIES THEREUNDER IN ACCORDANCE WITH CUSTOMARY AND USUAL PROCEDURES
EMPLOYED BY INSTITUTIONS SERVICING COMMERCIAL LOANS, WHICH INSTITUTIONS ARE
CONSIDERED PRUDENT BY THE BACK-UP SERVICER, AND IN ACCORDANCE WITH THE BACK-UP
SERVICER'S OWN CUSTOMARY PRACTICES, OR IF A HIGHER STANDARD, THE HIGHEST DEGREE
OF SKILL AND ATTENTION THAT THE BACK-UP SERVICER EXERCISES WITH RESPECT TO
CONTRACTS COMPARABLE TO THE CONTRACTS THAT THE BACK-UP SERVICER SERVICES FOR
ITSELF (THE "SERVICING STANDARD"). NOTWITHSTANDING ANY CONTRARY PROVISION
CONTAINED HEREIN, FOR SO LONG AS THE BACK-UP SERVICER IS ACTING AS SERVICER, ITS
RESPONSIBILITIES AS SERVICER SHALL BE DEEMED TO HAVE BEEN DISCHARGED IT IF HAS
COMPLIED WITH THE SERVICING STANDARD IN THE PERFORMANCE OF SUCH
RESPONSIBILITIES.
(C)
BNY ASSET SOLUTIONS LLC MAY, IF FOR ANY REASON BNY ASSET
SOLUTIONS LLC SHALL BE UNWILLING TO ACT AS BACK-UP SERVICER, OR SHALL, IF IT
SHALL BE LEGALLY UNABLE SO TO ACT, APPOINT, OR PETITION A COURT OF COMPETENT
JURISDICTION TO APPOINT, ANY ESTABLISHED FINANCIAL INSTITUTION REASONABLY
ACCEPTABLE TO THE PURCHASERS AND THE COLLATERAL AGENT, WHOSE REGULAR BUSINESS
SHALL INCLUDE THE SERVICING OF CONTRACTS COMPARABLE TO THE PURCHASED
RECEIVABLES, AS THE SUCCESSOR TO THE SERVICER UNDER THE LRPA.
BNY ASSET
SOLUTIONS LLC SHALL ACT AS BACK-UP SERVICER UNTIL A SUCCESSOR IS APPOINTED IN
ACCORDANCE HEREWITH.
IN CONNECTION WITH SUCH APPOINTMENT, THE COLLATERAL AGENT
MAY MAKE SUCH ARRANGEMENTS FOR THE COMPENSATION OF SUCH SUCCESSOR, OUT OF
PAYMENTS ON THE PURCHASED RECEIVABLES, AS IT AND SUCH SUCCESSOR SHALL AGREE;
PROVIDED, HOWEVER, THAT THE BACK-UP SERVICING FEE SHALL NOT BE IN EXCESS OF THE
RATE SET FORTH IN SECTION 3.03 ABOVE UNLESS APPROVED IN WRITING BY THE
PURCHASERS AND THE COLLATERAL AGENT.
(D)
IF THE BACK-UP SERVICER BECOMES THE SUCCESSOR