EXHIBIT 4.1
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DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
MIDLAND LOAN SERVICES, INC.,
Master Servicer
CWCAPITAL ASSET MANAGEMENT LLC,
Special Servicer
and
XXXXX FARGO BANK, N.A.,
Trustee and Paying Agent
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POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
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COMM 2006-C7
Commercial Mortgage Pass-Through Certificates
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
Section 1.03 Certain Constructions........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase Agreements.........................................
Section 2.02 Acceptance by Custodian and the Trustee......................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans....
Section 2.04 Representations, Warranties and Covenants of the Master
Servicer, the Special Servicer and the Trustee..............
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests................................
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions.............
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans and the Serviced Companion Loans.........
Section 3.02 Liability of the Master Servicer and the Special Servicer....
Section 3.03 Collection of Mortgage Loan and Serviced Companion Loan
Payments....................................................
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.05 Collection Account; Excess Liquidation Proceeds Account;
Distribution Accounts; Interest Reserve Account and
Serviced Whole Loan Collection Accounts.....................
Section 3.06 Permitted Withdrawals from the Collection Account, the
Serviced Whole Loan Collection Accounts and the
Distribution Accounts; Trust Ledger.........................
Section 3.07 Investment of Funds in the Collection Account, the
Serviced Whole Loan Collection Accounts, Distribution
Account REO Account, the Lock-Box Accounts, the Cash
Collateral Accounts and the Reserve Accounts................
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage.............................
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions...........................
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans........
Section 3.11 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation................................................
Section 3.13 Reports to the Trustee; Collection Account Statements........
Section 3.14 [Reserved]...................................................
Section 3.15 [Reserved]...................................................
Section 3.16 Access to Certain Documentation..............................
Section 3.17 Title and Management of REO Properties and REO Accounts......
Section 3.18 Sale of Specially Serviced Loans and REO Properties..........
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer; Inspections...............................
Section 3.20 Authenticating Agent.........................................
Section 3.21 Appointment of Custodians....................................
Section 3.22 [Reserved]...................................................
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts...............................
Section 3.24 Property Advances............................................
Section 3.25 Appointment of Special Servicer..............................
Section 3.26 Transfer of Servicing Between the Master Servicer and the
Special Servicer; Record Keeping; Asset Status Report.......
Section 3.27 [Reserved]...................................................
Section 3.28 Limitations on and Authorizations of the Master Servicer
and Special Servicer with Respect to Certain Mortgage
Loans.......................................................
Section 3.29 Certain Rights and Obligations of the Special Servicer.......
Section 3.30 Modification, Waiver, Amendment and Consents.................
Section 3.31 Matters Relating to Certain Mortgage Loans...................
Section 3.32 Certain Intercreditor Matters Relating to the Whole Loans....
Section 3.33 Rights of Holders of the Buckeye Portfolio Whole Loan........
Section 3.34 Rights of the Holders of the Valley Forge Whole Loan.........
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.......
Section 4.03 Compliance with Withholding Requirements.....................
Section 4.04 REMIC Compliance.............................................
Section 4.05 Imposition of Tax on the Trust Fund..........................
Section 4.06 Remittances..................................................
Section 4.07 P&I Advances.................................................
Section 4.08 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration, Transfer and Exchange of Certificates..........
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.04 Appointment of Paying Agent..................................
Section 5.05 Access to Certificateholders' Names and Addresses............
Section 5.06 Actions of Certificateholders................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer............................................
Section 6.02 Merger or Consolidation of the Master Servicer, the
Special Servicer or the Depositor...........................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer and Others.........................................
Section 6.04 Limitation on Resignation of the Master Servicer and the
Special Servicer; Termination of the Master Servicer and
the Special Servicer........................................
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicer and the Special Servicer....................
Section 6.06 The Master Servicer or Special Servicer as Owners of a
Certificate.................................................
Section 6.07 Certain Matters Relating to the Non-Serviced Mortgage Loan...
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders and Other Persons.........
Section 7.04 Other Remedies of Trustee....................................
Section 7.05 Waiver of Past Events of Default; Termination................
Section 7.06 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting the Trustee........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 8.04 Trustee May Own Certificates.................................
Section 8.05 Payment of Trustee's Fees and Expenses; Indemnification......
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of the Trustee.......................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee...........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
ARTICLE IX
TERMINATION
Section 9.01 Termination..................................................
ARTICLE X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent of the Parties; Reasonableness........................
Section 10.02 [Reserved]...................................................
Section 10.03 Information to be Provided by the Master Servicer and the
Special Servicer............................................
Section 10.04 Information to be Provided by the Trustee....................
Section 10.05 Filing Obligations...........................................
Section 10.06 Form 10-D Filings............................................
Section 10.07 Form 10-K Filings............................................
Section 10.08 Xxxxxxxx-Xxxxx Certification.................................
Section 10.09 Form 8-K Filings.............................................
Section 10.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports..........................
Section 10.11 Annual Compliance Statements.................................
Section 10.12 Annual Reports on Assessment of Compliance with Servicing
Criteria....................................................
Section 10.13 Annual Independent Public Accountants' Servicing Report......
Section 10.14 Exchange Act Reporting Indemnification.......................
Section 10.15 Amendments...................................................
Section 10.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods.............................
Section 10.17 Termination of the Trustee...................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Counterparts.................................................
Section 11.02 Limitation on Rights of Certificateholders...................
Section 11.03 Governing Law................................................
Section 11.04 Notices......................................................
Section 11.05 Severability of Provisions...................................
Section 11.06 Notice to the Depositor and Each Rating Agency...............
Section 11.07 Amendment....................................................
Section 11.08 Confirmation of Intent.......................................
Section 11.09 No Intended Third-Party Beneficiaries........................
Section 11.10 [Reserved]...................................................
Section 11.11 Entire Agreement.............................................
Section 11.12 Third Party Beneficiaries....................................
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-AB Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-1A Certificate
Exhibit A-7 Form of Class X Certificate
Exhibit A-8 Form of Class A-M Certificate
Exhibit A-9 Form of Class A-J Certificate
Exhibit A-10 Form of Class B Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class E Certificate
Exhibit A-14 Form of Class F Certificate
Exhibit A-15 Form of Class G Certificate
Exhibit A-16 Form of Class H Certificate
Exhibit A-17 Form of Class J Certificate
Exhibit A-18 Form of Class K Certificate
Exhibit A-19 Form of Class L Certificate
Exhibit A-20 Form of Class M Certificate
Exhibit A-21 Form of Class N Certificate
Exhibit A-22 Form of Class O Certificate
Exhibit A-23 Form of Class P Certificate
Exhibit A-24 Form of Class S Certificate
Exhibit A-25 Form of Class R Certificate
Exhibit A-26 Form of Class LR Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Servicing Fee Rate Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Form of Regulation S Transfer Certificate
Exhibit H Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global Certificate
during the Restricted Period
Exhibit I Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global Certificate
after the Restricted Period
Exhibit J Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global Certificate
Exhibit K Form of Distribution Date Statement
Exhibit L Form of Investor Certification
Exhibit M Form of Sub-Servicer Backup Certification
Exhibit N Form of Purchase Option Notice
Exhibit O Form of Trustee Backup Certification
Exhibit P Form of Servicer Backup Certification
Exhibit Q Form of Special Servicer Backup Certification
Exhibit R Form of Notification from Custodian
Exhibit S-1 Form of Closing Date Trustee Certification
Exhibit S-2 Form of Post-Closing Trustee Certification
Exhibit T Form of Notice to the Trustee and S&P from the Master Servicer
Regarding Defeasance of a Mortgage Loan
Exhibit U Information Request Form
Exhibit V Additional Disclosure Notification
Exhibit W Loan Seller Sub-Servicers
Exhibit X Loans with earnout/holdback provisions
Exhibit Y Form of Depositor Certification
TABLE OF SCHEDULES
Schedule I Class A-AB Planned Principal Balance Schedule
Schedule II Servicing Criteria to be Addressed in Assessment of Compliance
Schedule III Additional Form 10-D Disclosure
Schedule IV Additional Form 10-K Disclosure
Schedule V Form 8-K Disclosure Information
Pooling and Servicing Agreement, dated as of June 1, 2006, among
Deutsche Mortgage & Asset Receiving Corporation, as Depositor, Midland Loan
Services, Inc., as the master servicer (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as Trustee and Paying Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have
the meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans.
The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of any
Excess Interest) and certain other related assets subject to this Agreement, and
will issue (i) the uncertificated Class A-1L Interest, Class A-2L Interest,
Class A-3L Interest, Class A-ABL Interest, Class A-4L Interest, Class A-1AL
Interest, Class A-ML Interest, Class A-JL Interest, Class X-X Interest, Class
C-L Interest, Class D-L Interest, Class E-L Interest, Class F-L Interest, Class
G-L Interest, Class H-L Interest, Class X-X Interest, Class K-L Interest, Class
L-L Interest, Class M-L Interest, Class N-L Interest, Class O-L Interest and
Class P-L Interest (the "Lower-Tier Regular Interests"), as classes of regular
interests in the Lower-Tier REMIC, and (ii) the sole class of residual interests
in the Lower-Tier REMIC, which will be represented by the Class LR Certificates.
The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and
certain other related assets subject to this Agreement and will issue the
following Classes: the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates (the "Regular Certificates"), which are designated as
classes of regular interests, and the Class R Certificates, which are designated
as the sole class of residual interests, in the Upper-Tier REMIC.
The portion of the Trust Fund consisting of the Excess Interest and
proceeds thereof in the Grantor Trust Distribution Account (the "Grantor Trust")
will be treated as a grantor trust for federal income tax purposes. The Class S
Certificates will represent undivided beneficial interests in the Excess
Interest and proceeds thereof.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 1 on the Mortgage Loan Schedule (the "Desert Passage Mortgage Loan")
also secures two companion loans to the same Borrower, both of which are pari
passu in right of payment to the Desert Passage Mortgage Loan (the "Desert
Passage Pari Passu Loans" and together with the Desert Passage Mortgage Loan,
the "Desert Passage Whole Loan"). The Desert Passage Whole Loan will be serviced
pursuant to (i) a separate pooling and servicing agreement (the Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-1 (the "BACM 2006-1 Pooling and Servicing Agreement")), dated as of March
1, 2006, among Banc of America Commercial Mortgage Inc., as depositor, Bank of
America, National Association, as initial master servicer (in such capacity,
such initial servicer or any successor thereto, the "BACM 2006-1 Servicer"),
Midland Loan Services, Inc., as initial special servicer (in such capacity, such
initial special servicer or any successor thereto, the "BACM 2006-1 Special
Servicer"), Xxxxx Fargo Bank, N.A., as initial trustee (in such capacity, such
initial trustee or any successor thereto, the "BACM 2006-1 Trustee") and HSBC
Financial Services (Cayman) Limited, as Cayman collateral trustee and (ii) the
Desert Passage Intercreditor Agreement. Amounts attributable to the Desert
Passage Pari Passu Loans will not be assets of the Trust Fund or the Trust
REMICs and will be beneficially owned by the respective Companion Loan
Noteholders.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 81 on the Mortgage Loan Schedule, (the "Buckeye Portfolio Mortgage
Loan") also secures one separate mortgage loan to the related Borrower (the
"Buckeye Portfolio B Loan" or the "Buckeye Portfolio Companion Loan" and
together with the Buckeye Portfolio Mortgage Loan, the "Buckeye Portfolio Whole
Loan") which is subordinate to the Buckeye Portfolio Mortgage Loan. The Buckeye
Portfolio Whole Loan will be serviced pursuant to this Agreement and the Buckeye
Portfolio Intercreditor Agreement, as and to the extent provided herein and
therein. Amounts attributable to the Serviced Companion Loan will not be assets
of the Trust Fund or the Trust REMICs and will be beneficially owned by the
related Serviced Companion Loan Noteholder.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 33 on the Mortgage Loan Schedule, (the "Valley Forge Mortgage Loan")
also secures one separate mortgage loan to the related Borrower (the "Valley
Forge Center B Loan" or the "Valley Forge Companion Loan" and together with the
Valley Forge Mortgage Loan, the "Valley Forge Whole Loan") which is subordinate
to the Valley Forge Mortgage Loan. The Valley Forge Whole Loan will be serviced
pursuant to this Agreement and the Valley Forge Intercreditor Agreement, as and
to the extent provided herein and therein. Amounts attributable to the Serviced
Companion Loan will not be assets of the Trust Fund or the Trust REMICs and will
be beneficially owned by the related Serviced Companion Loan Noteholder.
The following table sets forth the Class designation, the
corresponding Lower-Tier Regular Interests (the "Corresponding Lower-Tier
Regular Interests") and the aggregate initial Certificate Balance (or, with
respect to the Class X Certificates, Notional Balance) for each Class of
Certificates comprising interests in the Upper-Tier REMIC.
Corresponding Original
Certificate Lower-Tier Lower-Tier
Corresponding Balance or Regular Principal
Certificates Notional Balance Interest(s) Balance
------------ ---------------- ----------- -------
Class A-1..... $90,000,000 A-1L $90,000,000
Class A-2..... $107,966,000 A-2L $107,966,000
Class A-3..... $40,098,000 A-3L $40,098,000
Class A-AB.... $98,824,000 A-ABL $98,824,000
Class A-4..... $1,052,664,000 A-4L $1,052,664,000
Class A-1A.... $323,552,000 A-1AL $323,552,000
Class X....... $2,447,292,352(1) N/A N/A
Class A-M..... $244,729,000 A-ML $244,729,000
Class A-J..... $189,666,000 A-JL $189,666,000
Class B....... $52,005,000 X-X $52,005,000
Class C....... $24,472,000 C-L $24,472,000
Class D....... $36,710,000 D-L $36,710,000
Class E....... $21,414,000 E-L $21,414,000
Class F....... $30,591,000 F-L $30,591,000
Class G....... $24,473,000 G-L $24,473,000
Class H....... $30,591,000 H-L $30,591,000
Class J....... $12,236,000 X-X $12,236,000
Class K....... $6,119,000 K-L $6,119,000
Class L....... $9,177,000 L-L $9,177,000
Class M....... $3,059,000 M-L $3,059,000
Class N....... $6,118,000 N-L $6,118,000
Class O....... $9,178,000 O-L $9,178,000
Class P....... $33,650,352 P-L $33,650,352
Class S....... N/A N/A N/A
Class R....... N/A N/A N/A
Class LR...... N/A N/A N/A
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(1) The initial Notional Balance of the Class X Certificates is equal to the
aggregate of the Lower-Tier Principal Balances of the Lower-Tier Regular
Interests.
The initial Certificate Balance of each of the Class R and Class LR
Certificates is zero. Additionally, the Class R and Class LR Certificates do not
have a Notional Balance. The Certificate Balance of any Class of Certificates
outstanding at any time represents the maximum amount which holders thereof are
entitled to receive as distributions allocable to principal from the cash flow
on the Mortgage Loans and the other assets in the Trust Fund; provided, however,
that in the event that amounts previously allocated as Realized Losses to a
Class of Certificates in reduction of the Certificate Balance thereof are
subsequently recovered (including without limitation after the reduction of the
Certificate Balance of such Class to zero), such Class may receive distributions
in respect of such recoveries in accordance with the priorities set forth in
Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $2,447,292,352.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the other
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article.
"10-K Filing Deadline": As defined in Section 10.7.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule and any related Serviced Companion Loan.
"Additional Form 10-D Disclosure": As defined in Section 10.6.
"Additional Form 10-K Disclosure": As defined in Section 10.7.
"Additional Servicer": Each Affiliate of the Master Servicer, the
Special Servicer, the Trustee, the Mortgage Loan Sellers or the Underwriters
(other than an affiliate of any such party acting in the capacity of a Loan
Seller Sub-Servicer), that Services any of the Mortgage Loans, and each Person,
other than the Special Servicer, who is not an Affiliate of the Master Servicer,
the Trustee, the Mortgage Loan Sellers or the Underwriters, who Services 10% or
more of the Mortgage Loans (based on their Stated Principal Balance).
"Additional Trust Fund Expense": Any expense incurred with respect
to the Trust Fund and not otherwise included in the calculation of a Realized
Loss that would result in the Holders of Regular Certificates receiving less
than the full amount of principal and/or the Interest Accrual Amount to which
they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Master
Servicer, the Special Servicer or the Trustee, as applicable, has not been
reimbursed and on Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Master Servicer, the Trustee or the Special Servicer, as
applicable, has not been timely paid or reimbursed for the number of days from
the date on which such Advance was made or such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due to the date of payment or reimbursement
of the related Advance or other such amount, less any amount of interest
previously paid on such Advance or Servicing Fees, Trustee Fees or Special
Servicing Compensation; provided, that if, during any Collection Period in which
an Advance was made, the related Borrower makes payment of an amount in respect
of which such Advance was made with interest at the Default Rate, the Advance
Interest Amount payable to the Master Servicer, the Special Servicer or the
Trustee shall be paid first, from the amount of Default Interest on the related
Mortgage Loan by such Borrower, second, from late payment fees on the related
Mortgage Loan by the related Borrower, and third, upon determining in good faith
that such Advance Interest Amount is not recoverable from the amounts described
in first or second, from other amounts on deposit in the Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, from time to time). Interest at the Advance Rate will accrue from
(and including) the date on which the related Advance is made or the related
expense incurred to (but excluding) the date on which such amounts are recovered
out of amounts received on the Mortgage Loan as to which such Advances were made
or servicing expenses incurred or the first Servicer Remittance Date after a
determination of non-recoverability, as the case may be, is made, provided that
such interest at the Advance Rate will continue to accrue to the extent funds
are not available in the Collection Account for such reimbursement of such
Advance. Notwithstanding the foregoing, with respect to any Mortgage Loan that
has a grace period that expires after the Determination Date, such interest
shall not begin to accrue until the day succeeding the expiration date of such
grace period.
"Adverse Grantor Trust Event": Any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions.
"Adverse REMIC Event": Any action, that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of any
Trust REMIC as a REMIC or (ii) result in the imposition of a tax upon any Trust
REMIC or the Trust Fund (including but not limited to the tax on "prohibited
transactions" as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, but not
including the tax on "net income from foreclosure property").
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. The Trustee may obtain
and rely on an Officer's Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property,
the portion of the principal amount of the related Mortgage Loan allocated to
such Mortgaged Property in the applicable Mortgage, Loan Agreement or the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 10.12 hereof and an annual report of
an Independent accountant required pursuant to Section 10.13 hereof
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be such state or local tax laws whose
applicability shall have been brought to the attention of the Trustee by either
(i) an opinion of counsel delivered to it, or (ii) written notice from the
appropriate taxing authority as to the applicability of such state or local tax
laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area.
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan (other than the Non-Serviced Mortgage Loan) or any Serviced Whole
Loan, an amount calculated by the Special Servicer by the first Determination
Date following the date the Special Servicer receives the required Appraisal or
performs the required Small Loan Appraisal Estimate equal to the excess, if any,
of (a) the Stated Principal Balance of such Mortgage Loan or the applicable
Serviced Whole Loan over (b) the excess of (i) 90% of the sum of the appraised
values (net of any prior mortgage liens but including all escrows and reserves
(other than escrows and reserves for taxes and insurance)) of the related
Mortgaged Properties securing such Mortgage Loan or the applicable Serviced
Whole Loan as determined by Updated Appraisals obtained by the Special Servicer
(the costs of which shall be paid by the Master Servicer as a Property Advance)
minus any downward adjustments the Special Servicer deems appropriate (without
implying any duty to do so) based upon its review of the Appraisal and any other
information it may deem appropriate (or, in the case of Mortgage Loans or
Serviced Whole Loans having a Stated Principal Balance under $2,000,000, 90% of
the sum of the Small Loan Appraisal Estimates of the related Mortgaged
Properties (as described below)) over (ii) the sum of (A) to the extent not
previously advanced by the Master Servicer or the Trustee, all unpaid interest
on such Mortgage Loan or the applicable Serviced Whole Loan at a per annum rate
equal to the Mortgage Rate (or with respect to the applicable Serviced Whole
Loan, the weighted average of the Mortgage Rate for the related Mortgage Loan(s)
and Serviced Companion Loans), (B) all unreimbursed Property Advances and the
principal portion of all xxxxxxxxxxxx X&X Advances, and all unpaid interest on
Advances at the Advance Rate, in respect of such Mortgage Loan or the applicable
Serviced Whole Loan, (C) any other unpaid Additional Trust Fund Expenses in
respect of such Mortgage Loan or the applicable Serviced Whole Loan (but subject
to the provisions of Section 1.02(e)) and (D) all currently due and unpaid real
estate taxes, ground rents and assessments and insurance premiums (net of any
escrows and reserves therefor) and all other amounts due and unpaid with respect
to such Mortgage Loan or the applicable Serviced Whole Loan (which taxes,
premiums (net of any escrows and reserves therefor) and other amounts have not
been the subject of an Advance by the Master Servicer, the Special Servicer or
the Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Updated Appraisal or Small Loan Appraisal
Estimate, as applicable, referred to above within 60 days of the Appraisal
Reduction Event (or in the case of an Appraisal Reduction Event occurring by
reason of clause (ii) of the definition thereof, within 30 days of such
Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be
an amount equal to 25% of the current Stated Principal Balance of the related
Mortgage Loan or the applicable Serviced Whole Loan until such time as such
Updated Appraisal or Small Loan Appraisal Estimate referred to above is received
and the Appraisal Reduction Amount is calculated. Notwithstanding the foregoing,
within 60 days after the Appraisal Reduction Event (or in the case of an
Appraisal Reduction Event occurring by reason of clause (ii) of the definition
thereof, 30 days) (A) with respect to Mortgage Loans (other than the
Non-Serviced Mortgage Loan) or an applicable Serviced Whole Loan having a Stated
Principal Balance of $2,000,000 or higher, the Special Servicer shall obtain an
Updated Appraisal or (B) with respect to Mortgage Loans (other than the
Non-Serviced Mortgage Loan) or an applicable Serviced Whole Loan having a Stated
Principal Balance of less than $2,000,000, the Special Servicer, at its option,
shall (i) provide a Small Loan Appraisal Estimate within the same time period as
an Appraisal would otherwise be required and such Small Loan Appraisal Estimate
shall be used in lieu of an Appraisal to calculate the Appraisal Reduction
Amount for such Mortgage Loans or applicable Serviced Whole Loan; or (ii) with
the consent of the Controlling Class Representative, obtain an Updated
Appraisal. On the first Distribution Date occurring on or after the delivery of
such Updated Appraisal or completion of such Small Loan Appraisal Estimate, as
applicable, the Special Servicer shall adjust the Appraisal Reduction Amount to
take into account such Updated Appraisal (regardless of whether the Updated
Appraisal is higher or lower than the Small Loan Appraisal Estimate). Each
Appraisal Reduction Amount shall also be adjusted to take into account any
subsequent Small Loan Appraisal Estimate or Updated Appraisal, as applicable,
and any annual letter updates, as of the date of each such subsequent Small Loan
Appraisal Estimate, Updated Appraisal or letter update, as applicable. With
respect to each Mortgage Loan that is cross-collateralized with any other
Mortgage Loan, the value of each Mortgaged Property that is security for each
Mortgage Loan in such cross-collateralized group, as well as the outstanding
amounts under each such Mortgage Loan shall be taken into account when
calculating such Appraisal Reduction Amount.
At any time that an Appraisal Reduction Amount exists with respect
to any Mortgage Loan (other than the Non-Serviced Mortgage Loan), the
Controlling Class Representative may, at its own expense, obtain and deliver to
the Master Servicer, the Special Servicer and the Trustee an Appraisal
satisfactory to the Special Servicer that satisfies the requirements of an
"Updated Appraisal," and upon the written request of the Controlling Class
Representative, the Special Servicer shall, subject to the Servicing Standard,
recalculate the Appraisal Reduction Amount in respect of such Mortgage Loan or
the applicable Serviced Whole Loan based on such Appraisal (but subject to any
downward adjustment by the Special Servicer as provided in the definition of
Appraisal Reduction Amount) and shall notify the Trustee, the Master Servicer,
the Controlling Class Representative and the Directing Certificateholder of such
recalculated Appraisal Reduction Amount.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction Amount related to a Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or a Serviced Whole Loan or the related REO Property
will be reduced to zero as of the date the related Mortgage Loan or Serviced
Whole Loan is paid in full, liquidated, repurchased or otherwise removed from
the Trust Fund.
Each Serviced Whole Loan will be treated as a single mortgage loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
mortgage loans that comprise such Serviced Whole Loan. Any Appraisal Reduction
Amount in respect of the Desert Passage Mortgage Loan shall be calculated by the
BACM 2006-1 Special Servicer in accordance with and pursuant to the terms of the
BACM 2006-1 Pooling and Servicing Agreement.
Any Appraisal Reduction Amount on a Serviced Whole Loan shall be
deemed allocated, first, to the related B Loan, up to the outstanding principal
balance thereof, if any, and, then, to the Mortgage Loan, or, in the case of a
Serviced Whole Loan with a Serviced Pari Passu Companion Loan, pro rata, to the
Mortgage Loan and any related Pari Passu Companion Loans based on each such
loan's outstanding principal balance.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the Non-Serviced Mortgage Loan) or Serviced Whole Loan, the first
Distribution Date following the earliest of (i) the date on which such Mortgage
Loan or Serviced Whole Loan becomes a Modified Mortgage Loan, (ii) the 90th day
following the occurrence of any uncured delinquency in Monthly Payments with
respect to such Mortgage Loan or Serviced Whole Loan, (iii) receipt of notice
that the related Borrower has filed a bankruptcy petition or the date on which a
receiver is appointed and continues in such capacity in respect of a Mortgaged
Property securing such Mortgage Loan or Serviced Whole Loan or 60 days after the
Borrower becomes the subject of involuntary bankruptcy proceedings and such
proceedings are not dismissed, (iv) the date on which the Mortgaged Property
securing such Mortgage Loan or Serviced Whole Loan becomes a Serviced REO
Property, (v) the 60th day after the third anniversary of any extension of a
Mortgage Loan or a Serviced Whole Loan and (vi) with respect to a Balloon Loan,
a payment default shall have occurred with respect to the related Balloon
Payment; provided, however, if (a) the related Borrower is diligently seeking a
refinancing commitment (and delivers a statement to that effect to the Master
Servicer, who shall promptly deliver a copy to the Special Servicer and the
Controlling Class Representative within 30 days after the default), (b) the
related Borrower continues to make its Assumed Scheduled Payment, (c) no other
Servicing Transfer Event has occurred with respect to that Mortgage Loan or
Serviced Whole Loan and (d) the Controlling Class Representative consents, an
Appraisal Reduction Event will not occur until 60 days beyond the related
maturity date; and provided, further, if the related Borrower has delivered to
the Master Servicer, who shall promptly deliver a copy to the Special Servicer
and the Controlling Class Representative, on or before the 60th day after the
related Maturity Date, a refinancing commitment reasonably acceptable to the
Special Servicer and the Controlling Class Representative, and the Borrower
continues to make its Assumed Scheduled Payments (and no other Servicing
Transfer Event has occurred with respect to that Mortgage Loan or Serviced Whole
Loan), an Appraisal Reduction Event will not occur until the earlier of (1) 120
days beyond the related Maturity Date and (2) the termination of the refinancing
commitment. The Special Servicer shall notify the Master Servicer promptly upon
the occurrence of any of the foregoing events with respect to any Specially
Serviced Loan.
"ARD Loan": Any Mortgage Loan the terms of which provide that if,
after an Anticipated Repayment Date, the borrower has not prepaid such Mortgage
Loan in full, any principal outstanding on that date will accrue interest at the
Revised Rate rather than the Initial Rate.
"Asset Status Report": As defined in Section 3.26(f).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, assigning to the mortgagee all of the
income, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed or
extended through the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that
is delinquent in respect of its Balloon Payment (including any REO Loan as to
which the Balloon Payment would have been past due), an amount equal to the sum
of (a) the principal portion of the Monthly Payment that would have been due on
such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Net Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Master Servicer or the
Special Servicer in connection with an assumption or modification of a Mortgage
Loan or a Serviced Whole Loan or substitution of a Borrower (or an interest
therein) thereunder (in each case, as set forth in the related Loan Documents)
permitted to be executed under the provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account pursuant to Section 3.17(b), but
excluding any Excess Liquidation Proceeds) on or in respect of the Mortgage
Loans, received by or on behalf of the Master Servicer in the Collection Period
relating to such Distribution Date, (ii) all P&I Advances made by the Master
Servicer or the Trustee, as applicable, in respect of the Mortgage Loans as of
such Distribution Date, (iii) all other amounts received by the Master Servicer
in such Collection Period (including the portion of Loss of Value Payments
deposited into the Collection Account pursuant to Section 3.06(f)) and required
to be placed in the Collection Account by the Master Servicer pursuant to
Section 3.05, (iv) without duplication, any late Monthly Payments on or in
respect of the Mortgage Loans received after the end of the Collection Period
relating to such Distribution Date but prior to the close of business on the
Business Day prior to the related Servicer Remittance Date, (v) any Servicer
Prepayment Interest Shortfalls remitted by the Master Servicer to the Collection
Account and (vi) with respect to the Distribution Date in March of each calendar
year (or February if the final Distribution Date occurs in such month), the
Withheld Amounts deposited in the Interest Reserve Account by the Trustee in
accordance with Section 3.05(f) and (vii) with respect to the first Distribution
Date, the Interest Deposit Amount; but excluding the following:
(a) amounts permitted to be used to reimburse the Master Servicer,
the Special Servicer or the Trustee, as applicable, for previously
unreimbursed Advances and Workout-Delayed Reimbursement Amounts and
interest thereon as described in Section 3.06;
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and Trustee Fee and an amount representing any
applicable Special Servicing Compensation;
(c) all amounts in the nature of late payment fees (to the extent
not applied to the reimbursement of the Advance Interest Amount and/or
Additional Trust Fund Expenses as provided in Section 3.06 hereof), Net
Prepayment Interest Excess, Net Default Interest, extension fees, loan
service transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees on the Mortgage Loans, which the Master
Servicer or the Special Servicer is entitled to retain as Servicing
Compensation or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments on Mortgage
Loans due after the related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds
and Net Condemnation Proceeds with respect to a Mortgage Loan which
represents any unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, to which the Master Servicer, any sub-servicer, Trustee
and/or the Special Servicer are entitled;
(f) all amounts representing certain fees and expenses, including
indemnity amounts, reimbursable or payable to the Master Servicer, the
Special Servicer or the Trustee and other amounts permitted to be retained
by the Master Servicer or withdrawn by the Master Servicer from the
Collection Account to the extent expressly set forth in this Agreement
(including, without limitation, as provided in Section 3.06 and including
any indemnities provided for herein), including interest thereon as
expressly provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account or any interest on Permitted Investments in which such
funds may be invested;
(h) all amounts received with respect to each Mortgage Loan
previously purchased, repurchased or replaced from the Trust Fund pursuant
to Sections 2.03(d), 3.18 or 9.01 during the related Collection Period and
subsequent to the date as of which such Mortgage Loan was purchased,
repurchased or replaced;
(i) the amount reasonably determined by the Trustee to be necessary
to pay any applicable federal, state or local taxes imposed on the
Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to
the extent described in Section 4.05;
(j) Excess Interest;
(k) Prepayment Premiums and Yield Maintenance Charges with respect
to the Mortgage Loans; and
(l) with respect to the Distribution Date occurring in (A) January
of each calendar year that is not a leap year and (B) February of each
calendar year, in each case, unless such Distribution Date is the final
Distribution Date, the Withheld Amounts deposited in the Interest Reserve
Account by the Trustee in accordance with Section 3.05(f).
"B Loan": The Buckeye Portfolio B Loan and the Valley Forge B Loan,
both of which are identified in the Preliminary Statement, as applicable and as
the context may require.
"BACM 2006-1 Pooling and Servicing Agreement": As defined in the
preliminary statement.
"BACM 2006-1 Servicer": As defined in the preliminary statement.
"BACM 2006-1 Special Servicer": As defined in the preliminary
statement.
"BACM 2006-1 Trustee": As defined in the preliminary statement.
"Balloon Loan": Any Mortgage Loan or Serviced Whole Loan that
requires a payment of principal on the maturity date in excess of its constant
Monthly Payment.
"Balloon Payment": With respect to each Balloon Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and any of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB,
Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, and Class H Certificates, a fraction (not greater than 1) (a)
whose numerator is the greater of zero and the amount, if any, by which (i) the
Pass-Through Rate on such Class of Certificates exceeds (ii) the yield rate (as
provided by the Master Servicer) used in calculating the Prepayment Premium or
Yield Maintenance Charge, as applicable, with respect to such Principal
Prepayment and (b) whose denominator is the amount, if any, by which the (i)
Mortgage Rate on such Mortgage Loan exceeds (ii) the yield rate (as provided by
the Master Servicer) used in calculating the Prepayment Premium or Yield
Maintenance Charge, as applicable, with respect to such Principal Prepayment;
provided, however, that if such yield rate is greater than or equal to the
lesser of (x) the Mortgage Rate on such Mortgage Loan and (y) the Pass-Through
Rate described in clause (a)(i) above, then the Base Interest Fraction shall be
zero.
"Beneficial Owner": With respect to a Global Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Master Servicer shall have
the right to require, as a condition to acknowledging the status of any Person
as a Beneficial Owner under this Agreement, that such Person provide evidence at
its expense of its status as a Beneficial Owner hereunder.
"BofA": Bank of America, National Association, in its capacity as a
Mortgage Loan Seller, and its successors.
"BofA Indemnification Agreement": The agreement dated as of May 26,
2006 from BofA to the Depositor and the Underwriters.
"BofA Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated and effective the Closing Date, between BofA and the Depositor.
"Borrower": With respect to any Mortgage Loan, Companion Loan or
Serviced Whole Loan, any obligor or obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Breach": As defined in Section 2.03(d).
"Buckeye Portfolio B Loan": As defined in the Preliminary Statement.
"Buckeye Portfolio B Loan Noteholder": The holder of the Note for
the Buckeye Portfolio B Loan.
"Buckeye Portfolio Companion Loan": As defined in the Preliminary
Statement.
"Buckeye Portfolio Intercreditor Agreement": That certain
intercreditor agreement among note holders, dated as of April 28, 2006 by and
between General Electric Capital Corporation and CBA-Mezzanine Capital Finance,
LLC, as from time to time amended, supplemented or modified.
"Buckeye Portfolio Mortgage Loan": As defined in the Preliminary
Statement.
"Buckeye Portfolio Whole Loan": As defined in the Preliminary
Statement.
"Business Day": Any day other than (i) a Saturday or a Sunday, (ii)
a legal holiday in New York, New York, Pittsburgh, Pennsylvania or the principal
cities in which the Master Servicer, the Special Servicer or the Trustee
conducts servicing or trust operations or (iii) a day on which banking
institutions or savings associations in New York, New York, Pittsburgh,
Pennsylvania or the principal cities in which the Master Servicer, the Special
Servicer or the Trustee conduct servicing or trust operations are authorized or
obligated by law or executive order to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan or
Serviced Whole Loan that has a Lock-Box Account, any account or accounts created
pursuant to the related Mortgage, Loan Agreement, Cash Collateral Account
Agreement or other Loan Document into which the Lock-Box Account monies are
swept on a regular basis for the benefit of the Trustee as successor to the
related Mortgage Loan Seller. Any Cash Collateral Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to receive
all reinvestment income or gain thereon in accordance with the terms and
provisions of the related Mortgage Loan and Section 3.07, which Person shall be
taxed on all reinvestment income or gain thereon in accordance with the terms of
the related Mortgage Loan or Serviced Whole Loan. The Master Servicer shall be
permitted to make withdrawals therefrom for deposit into the Collection Account
or the applicable Serviced Whole Loan Collection Account, as applicable. To the
extent not inconsistent with the terms of the related Loan Documents, each such
Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan or Serviced Whole Loan, the cash collateral account agreement, if any,
between the related Originator and the related Borrower, pursuant to which the
related Cash Collateral Account, if any, may have been established.
"Certificate": Any Class A-1, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R or Class LR Certificate issued, authenticated
and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Class X, Class S, Class R and Class LR Certificates) (a) on or
prior to the first Distribution Date, an amount equal to the aggregate initial
Certificate Balance of such Class, as specified in the Preliminary Statement
hereto, (b) as of any date of determination after the first Distribution Date,
the Certificate Balance of such Class of Certificates on the Distribution Date
immediately prior to such date of determination less any distributions allocable
to principal and any allocations of Realized Losses made thereon on such prior
Distribution Date.
"Certificate Custodian": Initially, the Trustee; thereafter, any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(a) except as provided in clauses (b) and (d), for the purpose of
giving any consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, a Manager or a Borrower or any Person known
to a Responsible Officer of the Certificate Registrar to be an Affiliate
of any thereof shall be deemed not to be outstanding and the Voting Rights
to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any
such consent or take any such action has been obtained;
(b) for purposes of obtaining the consent of Certificateholders to
an amendment of this Agreement, any Certificates beneficially owned by the
Master Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of
the Master Servicer or the Special Servicer or benefits the Master
Servicer or the Special Servicer (in its capacity as such) or any
Affiliate thereof (other than solely in its capacity as Certificateholder)
in any material respect, in which case such Certificates shall be deemed
not to be outstanding;
(c) except as provided in clause (d) below, for purposes of
obtaining the consent of Certificateholders to any action proposed to be
taken by the Special Servicer with respect to a Specially Serviced Loan,
any Certificates beneficially owned by the Special Servicer or an
Affiliate thereof shall be deemed not to be outstanding;
(d) for the purpose of exercising its rights as a member of the
Controlling Class or as a Controlling Class Representative (if
applicable), any Certificate beneficially owned by the Master Servicer,
the Special Servicer or an Affiliate thereof will be deemed outstanding;
and
(e) for purposes of providing or distributing any reports,
statements or other information required or permitted to be provided to a
Certificateholder hereunder, a Certificateholder shall include any
Beneficial Owner, or (subject to a confidentiality agreement attached
hereto as Exhibit U) any Person identified by a Beneficial Owner as a
prospective transferee of a Certificate beneficially owned by such
Beneficial Owner, but only if the Trustee or another party hereto
furnishing such report, statement or information has been provided with
the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the
foregoing, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or other such Person may rely, without
limitation, on a Depository Participant listing from the Depository or
statements furnished by a Person that on their face appear to be
statements from a Depository Participant to such Person indicating that
such Person beneficially owns Certificates.
"Certifying Person": As defined in Section 10.8.
"Certifying Servicer": As defined in Section 10.11.
"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class designation.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 5.540%.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-1A Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 0.0360%
"Class A-1AL Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to 5.690%.
"Class A-2L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 0.0870%.
"Class A-3L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 0.0250%.
"Class A-4L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-AB Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-AB Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate minus 0.0650%.
"Class A-ABL Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class A-J Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"Class A-JL Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class A-M Pass-Through Rate": A per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"Class A-ML Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class B Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class X-X Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class C Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class C-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class D Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class D-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class E Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class E-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class F Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class F-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class G Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class G-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Shortfall": On any Distribution Date for any Class
of Certificates, the amount of interest required to be distributed to the
Holders of such Class pursuant to Section 4.01(b) on such Distribution Date
minus the amount of interest actually distributed to such Holders pursuant to
such Section, if any.
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class X-X Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-19 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class K-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class L-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-32 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-21 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class M-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-22 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class N-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class O Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-23 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class O-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class P Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-24 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser of
5.544% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class P-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-31 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-30 hereto.
"Class X Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class X Interest Amount": With respect to any Distribution Date and
the related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for each of the Lower-Tier Regular Interests, weighted on the basis
of the respective Lower-Tier Principal Amounts of such Lower-Tier Regular
Interests as of the beginning of such Distribution Date and (ii) the Class X
Notional Amount for such Distribution Date.
"Class X Notional Amount": For any date of determination, the
aggregate of the Lower-Tier Principal Balance of the Lower-Tier Regular
Interests as of the preceding Distribution Date (after giving effect to the
distributions of principal on such Distribution Date), and in the case of the
first Distribution Date, as of the Closing Date.
"Class X Pass-Through Rate": With respect to any Distribution Date,
the weighted average of the Class X Strip Rates for each of the Lower-Tier
Regular Interests for such Distribution Date, weighted on the basis of the
respective Lower-Tier Principal Amounts of such Lower-Tier Regular Interests
outstanding immediately prior to such Distribution Date.
"Class X Strip Rate": With respect to any Lower-Tier Regular
Interest for any Distribution Date, (i) the Weighted Average Net Mortgage
Pass-Through Rate for such Distribution Date over (ii) the Pass-Through Rate for
the Corresponding Certificate. In no event will any Class X Strip Rate be less
than zero.
"Clearstream": Clearstream Banking Luxembourg, a division of
Clearstream International, societe anonyme.
"Closing Date": June 7, 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Advance Recoverability Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Master Servicer.
"CMSA Bond Level File": A data file substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be promulgated as recommended by the CMSA
for commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Collateral Summary File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Collateral Summary File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Trustee.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Financial File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Financial File" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable. The initial data for this report shall be provided by
each Mortgage Loan Seller.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA Website, or such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Loan
Periodic Update File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable, and the Trustee and, provided, that each CMSA Loan Periodic Update
File shall be accompanied by a CMSA Advance Recovery Report, if such report is
required for a particular month, and all references herein to "CMSA Loan
Periodic Update File" shall be construed accordingly.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Setup File" available as of the Closing Date on the
CMSA Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA Property File": The monthly report substantially in the form
of, and containing the information called for, in the downloadable form of the
"CMSA Property File" available as of the Closing Date on the CMSA Website, or
such other final form for the presentation of such information and containing
such additional information as may from time to time be promulgated as
recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Property File" available as
of the Closing Date on the CMSA Website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Reporting Package": Collectively,
(a) the CMSA Reports;
(b) the following eleven supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan Modification and Corrected Mortgage
Loan Report, (iii) Historical Liquidation Report, (iv) REO Status Report,
(v) Operating Statement Analysis Report, (vi) Comparative Financial Status
Report, (vii) Watch List, (viii) NOI Adjustment Worksheet, (ix) Loan Level
Reserve/LOC Report, (x) Reconciliation of Funds Report and (xi) Total Loan
Report; and
(c) such other reports as the CMSA may designate in the future and
any additional information as the Master Servicer, Special Servicer and
the Trustee may from time to time agree.
In addition, the CMSA Reporting Package shall include the CMSA
Advance Recovery Report, if such report is required for a particular month.
"CMSA Reports": Reports substantially in the forms of the CMSA
standard reporting package inclusive of the CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Property File, the CMSA Financial File, the CMSA
Special Servicer Defaulted Loan File, the CMSA Bond Level File and the CMSA
Collateral Summary File.
"CMSA Special Servicer Defaulted Loan File:" The report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Special Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "CMSA Special
Servicer Loan File" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Special Servicer.
"CMSA Supplemental Servicer Reports": The Delinquent Loan Status
Report, the Historical Loan Modification and Corrected Mortgage Loan Report, the
Historical Liquidation Report, the REO Status Report, the Watch List, the NOI
Adjustment Worksheet, the Comparative Financial Status Report, the Operating
Statement Analysis Report, the Loan Level Reserve/LOC Report, the CMSA Advance
Recovery Report and the Total Loan Report.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
"Co-Lender Agreement": (i) With respect to the Desert Passage Whole
Loan, the Desert Passage Intercreditor Agreement, (ii) with respect to the
Buckeye Portfolio Whole Loan, the Buckeye Portfolio Intercreditor Agreement and
(iii) with respect to the Valley Forge Whole Loan, the Valley Forge
Intercreditor Agreement, in each case, as applicable and as the context may
require.
"Collection Account": The trust account or accounts created and
maintained by the Master Servicer pursuant to Section 3.05(a), which shall be
entitled "Midland Loan Services, Inc., for the benefit of Xxxxx Fargo Bank,
N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through Certificates,
Collection Account" and which must be an Eligible Account.
"Collection Period": With respect to any Distribution Date and each
Mortgage Loan, the period that begins immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the Distribution Date occurring in July 2006, on the
day after the Cut-off Date) and ending at the close of business on the
Determination Date in the calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Any of the Dessert Passage Pari Passu Loans, the
Buckeye Portfolio B Loan or the Valley Forge B Loan, as applicable and as the
context may require.
"Companion Loan Noteholder": A holder of a Companion Loan.
"Comparative Financial Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
promulgated as recommended by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Comparative
Financial Status Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable. In connection with preparing the CMSA Comparative Financial Status
Report, the Master Servicer shall process (a) interim financial statements
beginning with interim financial statements for the fiscal quarter ending
September of 2006, and (b) annual financial statements beginning with annual
financial statements for the 2006 fiscal year.
"Condemnation Proceeds": Any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Borrower in
accordance with the terms of the applicable Mortgage Loan and, if applicable,
the terms of the applicable Serviced Whole Loan) or, if applicable, with respect
to the Mortgaged Property securing a Serviced Whole Loan, any portion of such
amounts payable to the holders of the applicable Serviced Whole Loan.
"Controlling Class": As of any date of determination, the Class of
Principal Balance Certificates with the latest alphabetical Class designation
that has a then-aggregate Certificate Balance at least equal to 25% of the
initial aggregate Certificate Balance of such Class of Principal Balance
Certificates as of the Closing Date. As of the Closing Date, the Controlling
Class will be the Class P Certificates. For purposes of determining the
Controlling Class, the Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4
and Class A-1A Certificates collectively will be treated as one Class.
"Controlling Class Certificateholder": Each holder (or Beneficial
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such holder (or Beneficial Owner).
"Controlling Class Representative": The Controlling Class
Certificateholder or its designee selected by more than 50% of the Controlling
Class Certificateholders, by Certificate Balance, as certified by the Trustee
from time to time; provided, however, that (i) absent such selection, or (ii)
until a Controlling Class Representative is so selected or (iii) upon receipt of
a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Controlling Class Representative is no longer
designated, the Controlling Class Certificateholder that owns the largest
aggregate Certificate Balance of the Controlling Class will be the Controlling
Class Representative; provided, further, that in order for the Trustee to
certify the status of the Controlling Class Representative, the Controlling
Class Representative must provide notice and certification of their holdings
through the Depository to the Trustee as to its status as Controlling Class
Representative upon which the Trustee shall use its best efforts to verify such
status. Cadim TACH inc. shall be the initial Controlling Class Representative,
without necessity of further notice or selection.
"Corporate Trust Office": The offices of the Trustee located at 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services, COMM 2006-C7, or the principal trust office of any successor Trustee
qualified and appointed pursuant to Section 8.08.
"Corrected Mortgage Loan": As defined under the definition of
Specially Serviced Loan.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Lower-Tier Regular Interest.
"Corresponding Lower-Tier Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage
Loans listed on the Mortgage Loan Schedule that are cross-collateralized with
each other.
"Cross-over Date": Means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4 and Class A-1A Certificates have
been reduced to zero.
"Custodial Agreement": The Custodial Agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee, in the form
agreed to by the Trustee and the Custodian, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. If a
Custodian is not so appointed, then the Custodian shall be the Trustee. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor,
any Mortgage Loan Seller or any Affiliate thereof.
"Cut-off Date": With respect to each Mortgage Loan or Serviced Whole
Loan, June 1, 2006.
"CWCapital": CWCapital LLC, and its successors.
"CWCapital Indemnification Agreement": The agreement dated as of May
26, 2006 from CWCapital to the Depositor and the Underwriters.
"CWCapital Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated and effective the Closing Date, among CWCMSIII, CWCapital and
the Depositor.
"CWCMSIII": CWCapital Mortgage Securities III, LLC, in its capacity
as Mortgage Loan Seller, and its successors.
"DBS": Deutsche Bank Securities Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan or
Serviced Whole Loan as of any date of determination and for any period, the
ratio calculated by dividing the net operating income or net cash flow, as
applicable, of the related Mortgaged Property or Mortgaged Properties, as the
case may be, for the most recently ended 12-month trailing or one-year period
for which data is available from the related Borrower (or year-to-date until
such time that data for the trailing 12-month period is available), before
payment of any scheduled payments of principal and interest on such Mortgage
Loan or Serviced Whole Loan but after funding of required reserves and
"normalized" by the Master Servicer pursuant to Section 3.13, by the annual debt
service required by such Mortgage Loan or Serviced Whole Loan. Annual debt
service shall be calculated by multiplying the Monthly Payment in effect on such
date of determination for such Mortgage Loan or Serviced Whole Loan by 12 (or
such fewer number of months for which related information is available).
"Default Interest": With respect to any Mortgage Loan or Serviced
Companion Loan, interest accrued on such Mortgage Loan or Serviced Companion
Loan at the excess of (i) the Default Rate over (ii) the related Mortgage Rate.
"Default Rate": With respect to each Mortgage Loan or Serviced
Companion Loan, the per annum rate at which interest accrues on such Mortgage
Loan or Serviced Companion Loan following any event of default on such Mortgage
Loan or Serviced Companion Loan, including a default in the payment of a Monthly
Payment or a Balloon Payment.
"Defaulted Mortgage Loan": A Mortgage Loan or Serviced Whole Loan
which is delinquent at least 60 days in respect of its Monthly Payments or more
than 30 days delinquent in respect of its Balloon Payment, if any, in either
case such delinquency to be determined without giving effect to any grace period
permitted by the related Loan Documents and without regard to any acceleration
of payments under the related Mortgage Loan or Serviced Whole Loan.
"Defeasance Account": As defined in Section 3.30(j).
"Delinquency": Any failure of a Borrower to make a scheduled Monthly
Payment or Balloon Payment on a Due Date.
"Delinquent Loan Status Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Denomination": As defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed
by the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Desert Passage Controlling Holder": The Desert Passage Noteholders
acting in their collective capacity pursuant to Section 2(h) of the Desert
Passage Intercreditor Agreement.
"Desert Passage Intercreditor Agreement": With respect to the Desert
Passage Whole Loan, the Agreement Among Noteholders dated as of March 1, 2006 by
and between the holder of the Desert Passage Mortgage Loan, the Desert Passage
Pari Passu Note A-1 Holder and the Desert Passage Pari Passu Note A-3 Holder
relating to the relative rights of such holders, as the same may be further
amended from time to time in accordance with the terms thereof.
"Desert Passage Mezzanine Intercreditor Agreement": That certain
Amended and Restated Intercreditor Agreement, dated as of February 27, 2006, by
and between Bank of America, National Association as "Senior Lender" and Bank of
America, National Association as "Mezzanine Lender".
"Desert Passage Mezzanine Loan": That certain mezzanine loan related
to the Desert Passage Mortgage Loan, which is evidenced by that certain
Mezzanine Loan Agreement, dated as of October 4, 2005, by and between Desert
Passage Mezz, LLC and the Desert Passage Mezzanine Loan Holder.
"Desert Passage Mortgage Loan": As defined in the preliminary
statement.
"Desert Passage Mortgaged Property": The property that secures the
Desert Passage Whole Loan.
"Desert Passage Noteholders": The holder of the Mortgage Note for
the Desert Passage Mortgage Loan, the Desert Passage Pari Passu Note A-1 Holder
and the Desert Passage Pari Passu Note A-3 Holder.
"Desert Passage Pari Passu Loans": As defined in the preliminary
statement.
"Desert Passage Pari Passu Note A-1": The Mortgage Note related to
the Desert Passage Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the Desert Passage Pari Passu Note A-2 and the
Desert Passage Pari Passu Note A-3 to the extent set forth in the Desert Passage
Intercreditor Agreement.
"Desert Passage Pari Passu Note A-1 Holder": The holder of the
Desert Passage Pari Passu Note A-1.
"Desert Passage Pari Passu Note A-2": With respect to the Desert
Passage Mortgage Loan, the related Mortgage Note that is included in the Trust
Fund.
"Desert Passage Pari Passu Note A-3": The Mortgage Note related to
the Desert Passage Whole Loan that is not included in the Trust, which is pari
passu in right of payment to the Desert Passage Pari Passu Note A-1 and the
Desert Passage Pari Passu Note A-2 to the extent set forth in the Desert Passage
Intercreditor Agreement.
"Desert Passage Pari Passu Note A-3 Holder": The holder of the
Desert Passage Pari Passu Note A-3.
"Desert Passage Service Providers": With respect to the Desert
Passage Pari Passu Loans that have been deposited into a securitization trust,
the related trustee, master servicer, special servicer, sub-servicer and any
other Person that makes principal and/or interest advances in respect of such
mortgage loan pursuant to the related pooling and servicing agreement.
"Desert Passage Whole Loan": The Desert Passage Mortgage Loan
together with the Desert Passage Pari Passu Note A-2 and the Desert Passage Pari
Passu Note A-3. References herein to the Desert Passage Whole Loan shall be
construed to refer to the aggregate indebtedness under the Desert Passage Pari
Passu Note A-1, the Desert Passage Pari Passu Note A-2 and the Desert Passage
Pari Passu Note A-3.
"Determination Date": With respect to any Distribution Date, the
earlier of (i) the sixth day of the month in which the related Distribution Date
occurs, or if such sixth day is not a Business Day, then the immediately
preceding business day and (ii) the fourth Business Day prior to the related
Distribution Date, commencing in July 2006.
"Directing Certificateholder": (a) with respect to any Mortgage
Loan, other than any Serviced Loan Combination or Non-Serviced Loan Combination,
the Controlling Class Representative; (b) with respect to the Desert Passage
Whole Loan, the Desert Passage Controlling Holder, (c) with respect to the
Buckeye Portfolio Whole Loan, (i) as to certain matters set forth in Section
3.33 herein and as provided in the Buckeye Portfolio Intercreditor Agreement as
to which the Buckeye Portfolio B Loan Noteholder is entitled to consent or
approve, the Buckeye Portfolio B Loan Noteholder and (ii) as to all other
matters, the Controlling Class Representative and (d) with respect to the Valley
Forge Whole Loan, (i) as to certain matters set forth in Section 3.34 herein and
as provided in the Valley Forge Intercreditor Agreement as to which the Valley
Forge B Loan Noteholder is entitled to consent or approve, the Valley Forge B
Loan Noteholder and (ii) as to all other matters, the Controlling Class
Representative.
"Directly Operate": With respect to any Serviced REO Property, the
furnishing or rendering of services to the tenants thereof that are not
customarily provided to tenants in connection with the rental of space for
occupancy only within the meaning of Treasury Regulations Section
1.512(b)-1(c)(5), the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers in the ordinary course of a
trade or business, or any use of such REO Property in a trade or business
conducted by the Trust Fund, or the performance of any construction work on the
REO Property other than through an Independent Contractor; provided, however,
that the Special Servicer, on behalf of the Trust Fund, shall not be considered
to Directly Operate a Serviced REO Property solely because the Special Servicer,
on behalf of the Trust Fund, establishes rental terms, chooses tenants, enters
into or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such Serviced REO Property or
takes other actions consistent with Treasury Regulations Section
l.856-4(b)(5)(ii).
"Disclosure Documents": Collectively, the Time of Sale Information,
the Prospectus and the Private Placement Memorandum.
"Disqualified Non-U.S. Person": With respect to a Class R or Class
LR Certificate, (A) any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R or Class LR Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or applicable successor Form promulgated by the IRS for the purpose
of providing and certifying the information provided on Form W-8ECI as of the
Closing Date) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R or Class LR
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R or
Class LR Certificate will not be disregarded for federal income tax purposes,
(B) any domestic partnership for U.S. federal income tax purposes, one or more
of the direct or indirect beneficial owners (other than through a U.S.
corporation) of which is a non-U.S. Person who is not described in clause (A)(i)
or (ii) or (C) a U.S. Person with respect to whom income on the Class R or Class
LR Certificate is attributable to a fixed base or foreign permanent
establishment, within the meaning of an applicable income tax treaty, of such
Person or any other U.S. Person.
"Disqualified Organization": Any of (a) the United States, a State
or any political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by any such
governmental unit), (b) a foreign government, International Organization (as
defined below) or agency or instrumentality of either of the foregoing, (c) an
organization that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the
Class R or Class LR Certificates (except certain farmers' cooperatives described
in Code Section 521), (d) rural electric and telephone cooperatives described in
Code Section 1381(a)(2), or (e) any other Person so designated by the
Certificate Registrar based upon an Opinion of Counsel to the effect that any
Transfer to such Person may cause any Trust REMIC to be subject to tax or to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
For the purposes of this definition, the terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Grantor Trust Distribution
Account, all of which may be subaccounts of a single Eligible Account.
"Distribution Date": The 10th day of each month, or if such 10th day
is not a Business Day, the Business Day immediately following such 10th day,
beginning in July 2006..
"Distribution Date Statement": As defined in Section 4.02(a).
"Do Not Hire List": The list, as may be updated at any time,
provided by the Depositor to the Master Servicer, Special Servicer and Trustee,
which lists certain parties identified by the Depositor as having failed to
comply with their respective obligations under Article X of this Agreement or as
having failed to comply with any similar Regulation AB reporting requirements
under any pooling and servicing agreement relating to any other series of
certificates offered by the Depositor.
"Due Date": With respect to (i) any Mortgage Loan or Serviced Whole
Loan on or prior to its Maturity Date, the day of the month set forth in the
related Note on which each Monthly Payment thereon is scheduled to be first due
and (ii) any Mortgage Loan or Serviced Whole Loan after the Maturity Date
therefore or any REO Loan, the day of the month set forth in the related Note on
which each Monthly Payment on such Mortgage Loan or Serviced Whole Loan had been
scheduled to be first due.
"XXXXX": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than 1.0% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Any of (i) (A) an account or accounts maintained
with a depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least "A-1" by S&P and
"F1" by Fitch, in the case of accounts in which funds are held for 30 days or
less or, in the case of accounts in which funds are held for more than 30 days,
the long term unsecured debt obligations of which are rated at least "AA-" by
S&P (or "A+ if the related short-term rating is at least "A-1") and "AA-" by
Fitch, or (B) as to which the Trustee has received written confirmation from
each of the Rating Agencies that holding funds in such account would not cause
any Rating Agency to qualify, withdraw or downgrade any of its then-current
ratings on the Certificates, (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations substantially
similar to 12 C.F.R. ss. 9.10(b), and subject to supervision or examination by
federal and state authority, (iii) any other account that, as evidenced by a
written confirmation from each Rating Agency would not, in and of itself, cause
a downgrade, qualification or withdrawal of the then-current ratings assigned to
the Certificates, which may be an account maintained with the Trustee or the
Master Servicer, or (iv) an account or accounts maintained with PNC Bank so long
as (A) PNC Bank's long-term unsecured debt rating shall be at least "A" from
Fitch and "A" from S&P and its short-term unsecured debt rating is at least
"A-1" from S&P (if the deposits are to be held in the account for more than 30
days) or (B) PNC's short-term deposit or short-term unsecured debt rating shall
be at least "F1" from Fitch and "A-1" from S&P (if the deposits are to be held
in the account for 30 days or less). Eligible Accounts may bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the Mortgage Loan Sellers
in connection with the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account
may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Master
Servicer pursuant to the related Mortgage, Cash Collateral Account Agreement,
Lock-Box Agreement, Loan Agreement or other Loan Document for the account of
such Borrower for application toward the payment of taxes, insurance premiums,
assessments, environmental remediation and similar items in respect of the
related Mortgaged Property or related to the satisfaction of closing conditions
for the related Mortgage Loan or Serviced Whole Loan.
"Euroclear": The Euroclear System and its successors.
"Event of Default": A Master Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on and allocable to such Mortgage Loan after the Anticipated Repayment
Date allocable to the Excess Rate, including all interest accrued thereon. The
Excess Interest shall not be an asset of any Trust REMIC formed hereunder.
"Excess Liquidation Proceeds": With respect to any Mortgage Loan
(other than a Non-Serviced Mortgage Loan) or Serviced Companion Loan, the excess
of (i) Net Liquidation Proceeds of such Mortgage Loan or Serviced Companion Loan
or related Serviced REO Property, over (ii) the amount that would have been
received if a principal payment and all other amounts due in full had been made
with respect to such Mortgage Loan or Serviced Companion Loan on the Due Date
immediately following the date on which such proceeds were received.
"Excess Liquidation Proceeds Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section 3.05(j)
in trust for the Certificateholders and, in the case of the Serviced Companion
Loans, the Serviced Companion Loan Noteholders, which shall be entitled "Xxxxx
Fargo Bank, N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates and, if applicable, Serviced Companion Loan Noteholders, Excess
Liquidation Proceeds Account." The Excess Liquidation Proceeds Account must be
an Eligible Account or a sub-account of an Eligible Account and will be an asset
of the Lower-Tier REMIC.
"Excess Prepayment Interest Shortfall": With respect to the Mortgage
Loans in the Mortgage Pool, the aggregate Prepayment Interest Shortfalls with
respect to the Mortgage Pool in excess of the Servicer Prepayment Interest
Shortfall with respect to the Mortgage Pool.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Excess Servicing Strip": The excess of the Servicing Fee Rate over
0.005% (0.50 basis points) per annum, subject to reduction by the Trustee
pursuant to Section 3.12(a).
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan Modification and corrected Mortgage Loan
Report, REO Status Report, Operating Statement Analysis Report, NOI Adjustment
Worksheet, Watch List, or Annual Compliance Report to be filed with the
Commission, under cover of the related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan, Serviced REO Loan or any Mortgage Loan subject to repurchase by
the related Mortgage Loan Seller pursuant to Section 2.03(d) or, in the case of
a Whole Loan, subject to a purchase pursuant to the applicable Co-Lender
Agreement or any Mortgage Loan or Whole Loan subject to purchase pursuant to any
related mezzanine intercreditor agreement, the recovery of all Insurance
Proceeds, Liquidation Proceeds, the related Repurchase Price and other payments
or recoveries (including proceeds of the final sale of any Serviced REO
Property) which the Master Servicer (or in the case of a Specially Serviced Loan
or Serviced REO Loan, the Special Servicer), in its reasonable judgment as
evidenced by a certificate of a Servicing Officer delivered to the Trustee and
the Custodian (and the Master Servicer, if the certificate is from the Special
Servicer), expects to be finally recoverable. The Master Servicer shall maintain
records, prepared by a Servicing Officer, of each Final Recovery Determination
until the earlier of (i) its termination as the Master Servicer hereunder and
the transfer of such records to a successor servicer and (ii) five years
following the termination of the Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fitch": Fitch, Inc., or any successor thereto.
"FNMA": The Federal National Mortgage Association or any successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act or
such successor form as the Commission may specify from time to time.
"Form 8-K Disclosure Information": As defined in Section 10.9.
"GACC": German American Capital Corporation, in its capacity as a
Mortgage Loan Seller, and its successors.
"GACC Defeasance Rights and Obligations": As defined in Section
3.30(m).
"GACC Indemnification Agreement": The agreement dated as of May 26,
2006 from GACC to the Depositor and the Underwriters.
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement
dated and effective the Closing Date, between GACC and the Depositor.
"GECC": General Electric Capital Corporation, in its capacity as
Mortgage Loan Seller, and its successors.
"GECC Indemnification Agreement": The agreement dated as of May 26,
2006 from GECC to the Depositor and the Underwriters.
"GECC Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated and effective the Closing Date, between GECC and the Depositor.
"GECC Mortgage Loans": The Mortgage Loans transferred to the Trust
pursuant to the GECC Purchase Agreement.
"Global Certificates": The Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates.
"Grantor Trust": As defined in the Preliminary Statement herein.
"Grantor Trust Distribution Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section
3.05(c), which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7
Commercial Mortgage Pass Through Certificates, Grantor Trust Distribution
Account," and which must be an Eligible Account or a sub-account of an Eligible
Account. The Grantor Trust Distribution Account shall not be an asset of any
Trust REMIC.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of
the Code and Treasury Regulations Section 301.7701-4(c).
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Liquidation Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Historical Loan Modification and Corrected Mortgage Loan Report": A
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Historical Loan Modification and Corrected
Mortgage Loan Report" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA Website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnification Agreements": Each of the GACC Indemnification
Agreement, GECC Indemnification Agreement, BofA Indemnification Agreement and
CWCapital Indemnification Agreement.
"Indemnified Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Indemnifying Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Independent": When used with respect to any specified Person, any
such Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Directing Holder, any Borrower or Manager or
any Affiliate thereof, and (ii) is not connected with any such Person thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer or the
Special Servicer, as applicable, and the Trustee has been delivered to the
Trustee to that effect) or (ii) any other Person (including the Master Servicer
and the Special Servicer) if the Master Servicer or the Special Servicer, as
applicable, on behalf of itself and the Trustee has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) to the effect that the taking of any action in respect of any
Serviced REO Property by such Person, subject to any conditions therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such Serviced REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized in respect of such Serviced
REO Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Initial Purchasers": DBS, Banc of America Securities LLC and their
respective successors in interest.
"Initial Rate": The stated Mortgage Rate with respect to an ARD
Loan.
"Initial Resolution Period": As defined in Section 2.03(d).
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan or
Serviced Whole Loan (including any amounts paid by the Master Servicer pursuant
to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of Certificates (other than the Class S, Class R and Class LR
Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class on the related Certificate
Balance or Notional Balance, as applicable, outstanding immediately prior to
such Distribution Date minus the amount of any Excess Prepayment Interest
Shortfall, allocated to such Class with respect to such Distribution Date.
Calculations of interest due in respect of the Certificates shall be made on the
basis of a 360-day year consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Interest Deposit Amount": shall mean an amount equal to $0.00.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(f),
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for
Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7
Mortgage Pass-Through Certificates, Interest Reserve Account" and which must be
an Eligible Account or a sub-account of an Eligible Account. The Interest
Reserve Account shall be an asset of the Lower-Tier REMIC.
"Interested Person": As of any date of determination, the Depositor,
the Master Servicer, Special Servicer, the Trustee, any Holder of a Certificate,
any Borrower, any Manager, any Independent Contractor engaged by the Special
Servicer pursuant to Section 3.17, or any Person known to a Responsible Officer
of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Late Collections": With respect to any Mortgage Loan or Serviced
Whole Loan, all amounts received thereon during any Collection Period (or the
related grace period), whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal or interest due in respect of such Mortgage Loan or
Serviced Whole Loan (without regard to any acceleration of amounts due
thereunder by reason of default) on a Due Date in a previous Collection Period
and not previously recovered. With respect to any REO Loan, all amounts received
in connection with the related REO Property during any Collection Period
(including any grace period applicable under the original Mortgage Loan or
Serviced Whole Loan), whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Proceeds or otherwise, which represent late
collections of principal or interest due or deemed due in respect of such REO
Loan or the predecessor Mortgage Loan or Serviced Whole Loan (without regard to
any acceleration of amounts due under the predecessor Mortgage Loan or Serviced
Whole Loan by reason of default) on a Due Date in a previous Collection Period
and not previously recovered. The term "Late Collections" shall specifically
exclude Penalty Charges.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or Serviced Whole Loan or the liquidation of a Serviced REO Property or the sale
of any Mortgage Loan pursuant to Section 3.18 or Section 9.01 (including,
without limitation, legal fees and expenses, committee or referee fees, and, if
applicable, brokerage commissions, and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Loan or Serviced REO Loan or with respect to
each Mortgage Loan as specified in clause (b) of this definition, in each case
as to which the Special Servicer obtains a full, partial or discounted payoff
from the related Borrower or Mortgage Loan Seller, as applicable, or any
Liquidation Proceeds with respect thereto (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
the net Liquidation Proceeds (net of the related costs and expenses associated
with the related liquidation) related to such liquidated or repurchased Mortgage
Loan or Specially Serviced Loan, as the case may be; provided, however, that (a)
no such fee shall be payable with respect to clauses (iii) or (v) of the
definition of Liquidation Proceeds (except, in the case of clause (iii), to the
extent a Liquidation Fee is required to be paid pursuant to Section 3.18
hereof); no such fee shall be payable in the case of clause (vi) of the
definition of Liquidation Proceeds unless the existing or any future related
mezzanine intercreditor agreement requires the purchaser to pay such fee; no
such fee shall be payable in the case of clause (vii) of the definition of
Liquidation Proceeds except to the extent the related Co-Lender Agreement
requires the purchaser to pay such fee, and (b) in the case of a final
disposition consisting of the repurchase of a Mortgage Loan (or related REO
Loan) by the applicable Mortgage Loan Seller pursuant to Section 2.03(d), no
such fee shall be paid by a Mortgage Loan Seller or be due to the Special
Servicer if the applicable Mortgage Loan Seller repurchases such Mortgage Loan
within the time period set forth in Section 2.03(d) (and giving effect to any
applicable extension period beyond the end of the Initial Resolution Period set
forth in Section 2.03(d)) and, with respect to any Serviced Companion Loan, no
such fee shall be due to the Special Servicer under this Agreement in connection
with a repurchase of such Serviced Companion Loan under the applicable Serviced
Companion Loan Securitization Agreement.
"Liquidation Fee Rate": A rate equal to 1.0%.
"Liquidation Proceeds": Cash amounts (other than Insurance Proceeds
and Condemnation Proceeds and REO Revenues) received by or paid to the Master
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Borrower in accordance with applicable law and the terms and conditions
of the related Note and Mortgage; (ii) the realization upon any deficiency
judgment obtained against a Borrower; (iii) the purchase of a Defaulted Mortgage
Loan by the Directing Certificateholder or the Special Servicer; (iv) the
repurchase of a Mortgage Loan (or related REO Loan) by the applicable Mortgage
Loan Seller pursuant to Section 2.03(d); (v) the purchase of all the Mortgage
Loans and all property acquired in respect of any Mortgage Loan by the Sole
Certificateholder, the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Special Servicer or the Master Servicer
pursuant to Section 9.01; (vi) in connection with any existing mezzanine
indebtedness or any mezzanine indebtedness that may exist on a future date, the
purchase of the related Mortgage Loan by a mezzanine lender; (vii) in the case
of the Buckeye Portfolio Mortgage Loan and the Valley Forge Mortgage Loan, the
purchase of such Mortgage Loan by a related Serviced B Loan Noteholder, or the
applicable designee, as applicable, pursuant to the related Co-Lender Agreement
or (viii) except for purposes of Section 3.12(c) and (d), the transfer of any
Loss of Value Payments from the Loss of Value Reserve Fund to the Collection
Account.
"Loan Agreement": With respect to any Mortgage Loan or Serviced
Whole Loan, the loan agreement, if any, between the related Originator and the
Borrower, pursuant to which such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan or Serviced
Whole Loan, the documents executed or delivered in connection with the
origination of such Mortgage Loan or Serviced Whole Loan or subsequently added
to the related Mortgage File.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loan that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Level Reserve/LOC Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Loan Level Reserve/LOC Report" available as of the Closing Date on the CMSA
Website, or such other final form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Level Reserve/LOC Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Seller Sub-Servicer": A Servicing Function Participant or
Sub-Servicer required to be retained by the Master Servicer or the Special
Servicer by a Mortgage Loan Seller, as listed on Exhibit W hereto, or any
successor thereto, including any Successful Sub-Servicing Bidder.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to the related Loan Documents to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan or Serviced Whole Loan and Section 3.07, which
Person shall be taxed on all reinvestment income or gain thereon. The Master
Servicer shall be permitted to make withdrawals therefrom for deposit into the
related Cash Collateral Accounts in accordance with the terms of the related
Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan or Serviced
Whole Loan, the lock-box agreement, if any, between the related Originator and
the Borrower, pursuant to which the related Lock-Box Account, if any, may have
been established.
"Loss of Value Payment": As defined in Section 2.03(d).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 3.05(e) of this Agreement. The Loss of Value Reserve Fund will be
part of the Trust Fund but not part of the Grantor Trust or any Trust REMIC.
"Lower-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(b),
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for
Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7
Commercial Mortgage Pass-Through Certificates, Lower-Tier Distribution Account"
and which must be an Eligible Account or a sub-account of an Eligible Account.
The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.
"Lower-Tier Distribution Amount": As defined in Section 4.01(a)(ii).
"Lower-Tier Principal Balance": With respect to any Class of
Lower-Tier Regular Interest, initially will equal the original principal balance
set forth in the Preliminary Statement herein, and from time to time will equal
such amount reduced by the amount of distributions of the Lower-Tier
Distribution Amount allocable to principal and Realized Losses allocable thereto
in all prior periods as described in Section 4.01(a)(ii) and 4.01(f) hereof.
"Lower-Tier Regular Interests": The Class A-1L Interest, the Class
A-2L Interest, the Class A-3L Interest, the Class A-ABL Interest, the Class A-4L
Interest, the Class A-ML Interest, the Class A-JL Interest, the Class X-X
Interest, the Class C-L Interest, the Class D-L Interest, the Class E-L
Interest, the Class F-L Interest, the Class G-L Interest, the Class H-L
Interest, the Class X-X Interest, the Class K-L Interest, the Class L-L
Interest, the Class M-L Interest, the Class N-L Interest, the Class O-L Interest
and the Class P-L Interest, issued by the Lower-Tier REMIC and held by the
Trustee as assets of the Upper-Tier REMIC. Each Lower-Tier Regular Interest (i)
relates to a Class of Certificates (other than the Class R, Class LR, Class X
and Class S Certificates), (ii) is uncertificated, (iii) has an initial
Lower-Tier Principal Balance equal to the original Lower-Tier Principal Balance
set forth in the Preliminary Statement herein, (iv) has a Pass-Through Rate
equal to the Weighted Average Net Mortgage Pass-Through Rate, (v) has a "latest
possible maturity date," within the meaning of Treasury Regulations Section
1.860G-1(a), that is the Rated Final Distribution Date and (vi) is entitled to
the distributions in the amounts and at the times specified in Section
4.01(a)(ii) and Section 4.01(c).
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Excess Interest), collections
thereon, the Trust's interest in any REO Property acquired in respect thereof,
amounts related thereto held from time to time in the Collection Account and the
Lower-Tier Distribution Account, the REO Account (to the extent of the Trust
Fund's interest therein), the Interest Reserve Account, amounts held from time
to time and the Excess Liquidation Proceeds Account (to the extent of the Trust
Fund's interest therein) in respect thereof, and all other property included in
the Trust Fund that is not in the Upper-Tier REMIC or the Grantor Trust.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan or
Serviced Whole Loan, the Management Agreement, if any, by and between the
Manager and the related Borrower, or any successor Management Agreement between
such parties.
"Manager": With respect to any Mortgage Loan or Serviced Whole Loan,
any property manager for the related Mortgaged Properties.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer": Midland Loan Services, Inc., a Delaware
corporation, or any successor Master Servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan or
Serviced Pari Passu Companion Loan and for any Distribution Date, an amount per
Interest Accrual Period equal to the product of (i) the respective Master
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
or Serviced Pari Passu Companion Loan as of the Due Date in the immediately
preceding Collection Period (without giving effect to payments of principal on
such Mortgage Loan or Serviced Pari Passu Companion Loan on such Due Date). For
the avoidance of doubt, with respect to any B Loan, no Master Servicing Fee
shall accrue on the Stated Principal Balance thereof.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum set forth on Exhibit B-2.
"Material Breach": As defined in Section 2.03(d).
"Material Defect": As defined in Section 2.03(d).
"Maturity Date": With respect to any Mortgage Loan or Serviced
Companion Loan as of any date of determination, the date on which the last
payment of principal is due and payable under the related Note, after taking
into account all Principal Prepayments received prior to such date of
determination, but without giving effect to (i) any acceleration of the
principal of such Mortgage Loan or Serviced Companion Loan by reason of default
thereunder or (ii) any grace period permitted by the related Note.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Modified Mortgage Loan": Any Specially Serviced Loan which has been
modified by the Special Servicer pursuant to Section 3.30 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan or Serviced Companion
Loan), including any reduction in the Monthly Payment;
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Borrower and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan
or Serviced Companion Loan or reduces the likelihood of timely payment of
amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or Serviced
Companion Loan (other than any REO Loan) and any Due Date, the scheduled monthly
payment of principal, if any, and interest at the Mortgage Rate, excluding any
Balloon Payment (but not excluding any constant Monthly Payment due on a Balloon
Loan), which is payable by the related Borrower on such Due Date under the
related Note, excluding any Excess Interest. With respect to an REO Loan, the
monthly payment that would otherwise have been payable on the related Due Date
had the related Note not been discharged, determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan or Serviced
Companion Loan, collectively, the mortgage documents listed in clauses (i)
through (xx) of Section 2.01(a) pertaining to such particular Mortgage Loan or
Serviced Companion Loan and any additional documents required to be added to
such Mortgage File pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. The mortgage loans originally so transferred, assigned and held are
identified on the Mortgage Loan Schedule as of the Closing Date. Such term shall
include any REO Loan, Specially Serviced Loan or any Mortgage Loan that has been
defeased in whole or in part. Such term shall not include the Serviced Companion
Loans but shall include the Serviced Mortgage Loans.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the BofA Purchase Agreement, the CWCapital Purchase Agreement and the
GECC Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B-1, which
list shall set forth the following information with respect to each Mortgage
Loan:
(a) the loan number;
(b) the loan name;
(c) the street address (including city, state and zip code) of the
related Mortgaged Property;
(d) the Mortgage Rate in effect as of the Cut-off Date;
(e) the original principal balance;
(f) the Stated Principal Balance as of the Cut-off Date;
(g) the Maturity Date or Anticipated Repayment Date for each
Mortgage Loan;
(h) the Due Date;
(i) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(j) [Reserved];
(k) the Servicing Fee Rate;
(l) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(m) whether such Mortgage Loan has a hard lock-box, a springing hard
lock-box, a soft-at-closing, springing hard lock-box or no lock-box at
all;
(n) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized;
(o) the applicable Loan Group to which such Mortgage Loan belongs;
(p) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property;
(q) whether such Mortgage Loan has an Anticipated Repayment Date;
and
(r) the Revised Rate of such Mortgage Loan, if any.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. A comparable list shall be prepared with
respect to each Serviced Companion Loan.
"Mortgage Loan Sellers": Each of GACC, BofA, CWCMSIII and GECC.
"Mortgage Pool": All of the Mortgage Loans and any successor REO
Loans, collectively. The Mortgage Pool does not include the Companion Loans or
any related REO Loans.
"Mortgaged Property": The underlying property securing a Mortgage
Loan including any REO Property, consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold estate in a portion of the property and
a fee simple estate in the remainder, in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, Serviced
Companion Loan and any Interest Accrual Period, the annual rate at which
interest accrues on such Mortgage Loan or Serviced Companion Loan during such
period (in the absence of a default and excluding any Excess Interest), as set
forth in the related Note from time to time. The "Mortgage Rate" for purposes of
calculating the Net Mortgage Pass-Through Rate and the Weighted Average Net
Mortgage Pass-Through Rate shall be the Mortgage Rate of such Mortgage Loan or
Serviced Companion Loan without giving effect to any Default Rate or any Excess
Interest and without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or a reduction in interest or principal due to a modification
pursuant to Section 3.32 hereof.
"Net Condemnation Proceeds": Condemnation Proceeds, to the extent
such proceeds are not to be applied to the restoration, preservation or repair
of the related Mortgaged Property or released to the Borrower in accordance with
the express requirements of the Mortgage or Note or other documents included in
the Mortgage File or in accordance with the Servicing Standard.
"Net Default Interest": With respect to any Distribution Date, an
amount equal to the sum of (i) the amount of the aggregate collected Default
Interest allocable to the Mortgage Loans received during the preceding
Collection Period, minus (ii) any portions thereof withdrawn (A) from the
Collection Account pursuant to Section 3.06(b)(ix) for Advance Interest Amounts
and unreimbursed Additional Trust Fund Expenses incurred during or prior to such
Collection Period and (B) from each Serviced Whole Loan Collection Account
pursuant to Section 3.06(c)(ix) for Advance Interest Amounts and unreimbursed
Additional Trust Fund Expenses incurred during such Collection Period.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan or Serviced Whole Loan net of the amount of (i)
Liquidation Expenses incurred with respect thereto and, (ii) with respect to
proceeds received in connection with the taking of a Mortgaged Property (or
portion thereof) by the power of eminent domain in condemnation, amounts
required to be applied to the restoration or repair of the related Mortgaged
Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan
or Serviced Companion Loan and any Distribution Date, the per annum rate equal
to the Mortgage Rate for such Mortgage Loan or Serviced Companion Loan, minus,
for any such Mortgage Loan or Serviced Companion Loan (in the case of the Desert
Passage Mortgage Loan, the applicable Servicing Fee Rate and the servicing fee
rate pursuant to the BACM 2006-1 Pooling and Servicing Agreement), the aggregate
of the applicable Servicing Fee Rate and Trustee Fee Rate; provided, however,
that for purposes of calculating Pass-Through Rates, the Net Mortgage
Pass-Through Rate for any Mortgage Loan or Serviced Companion Loan will be
determined without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan or Serviced Companion Loan, whether agreed to by the
Master Servicer or resulting from a bankruptcy, insolvency or similar proceeding
involving the Borrower.
Notwithstanding the foregoing, if any such Mortgage Loan does not
accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then the "Net Mortgage Pass-Through Rate" of such Mortgage Loan for any
Interest Accrual Period will be the annualized rate at which interest would have
to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued in respect of such Mortgage Loan at the related
Mortgage Rate less the Servicing Fee Rate and the Trustee Fee Rate during such
Interest Accrual Period; provided, however, that with respect to each such
Mortgage Loan, the Mortgage Rate for the one-month period (i) preceding the Due
Dates in (a) January and February in each year that is not a leap year or (b)
February only in each year that is a leap year will be determined exclusive of
the amounts withheld from that month (in each case unless the related
Distribution Date is the final Distribution Date) and (ii) preceding the Due
Date in March (or February if the related Distribution Date is the final
Distribution Date), will be determined inclusive of the Withheld Amounts, if
applicable, from the immediately preceding January and February.
"Net Prepayment Interest Excess": The excess amount, if any, that
the aggregate of all Prepayment Interest Excess for all Mortgage Loans that the
Master Servicer is servicing exceeds the aggregate of all Prepayment Interest
Shortfalls for such Mortgage Loans as of any Distribution Date.
"Net Prepayment Interest Shortfall": With respect to the Mortgage
Loans that the Master Servicer is servicing, the aggregate Prepayment Interest
Shortfalls on such Mortgage Loans in excess of the Servicer Prepayment Interest
Shortfall on such Mortgage Loans.
"Net REO Proceeds": With respect to each Serviced REO Property, REO
Proceeds with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of a Serviced REO Property entered into on
behalf of the Lower-Tier REMIC, as applicable, if such REMIC has the right to
renegotiate the terms of such lease, including any lease renewed or extended on
behalf of such REMIC.
"NOI Adjustment Worksheet": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "NOI Adjustment Worksheet" available as of the Closing Date on
the CMSA Website, is acceptable to the Master Servicer or the Special Servicer,
as applicable.
"Non-Serviced Mortgage Loan": The Desert Passage Mortgage Loan.
"Non-Serviced Mortgage Loan Service Providers": The Desert Passage
Service Providers.
"Non-Serviced Pari Passu Loan": All or any of the Desert Passage
Pari Passu Loans, as the context requires.
"Non-Serviced Whole Loans": The Desert Passage Whole Loan.
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance,
Nonrecoverable Property Advance or Nonrecoverable Workout-Delayed Reimbursement
Amounts.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer, the Special Servicer, in each case
in accordance with the Servicing Standard, or the Trustee, as applicable, would
not be ultimately recoverable, together with any accrued and unpaid interest
thereon, from late payments, Condemnation Proceeds, Insurance Proceeds,
Liquidation Proceeds and other collections on or in respect of the related
Mortgage Loan or REO Loan, which shall be evidenced by an officer certificate as
provided by Section 4.07(c). In the case of a Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the cross
collateralization of the related Cross-Collateralized Mortgage Loan.
"Nonrecoverable Property Advance": Any Property Advance previously
made or proposed to be made in respect of a Mortgage Loan (other than a
Non-Serviced Mortgage Loan) or the Serviced Whole Loan or any Serviced REO
Property that, in the reasonable judgment of the Master Servicer, the Special
Servicer, in each case in accordance with the Servicing Standard, or the
Trustee, as applicable, would not be ultimately recoverable, together with any
accrued and unpaid interest thereon, from late payments, Condemnation Proceeds,
Insurance Proceeds, Liquidation Proceeds and other collections on or in respect
of the related Mortgage Loan, Serviced REO Loan or Serviced Whole Loan, which
shall be evidenced by an officer certificate as provided by Section 3.24(d). The
determination as to the recoverability of any property advance previously made
or proposed to be made in respect of the Desert Passage Whole Loan shall be made
by the BACM 2006-1 Servicer, BACM 2006-1 Special Servicer or BACM 2006-1 Trustee
pursuant to the BACM 2006-1 Pooling and Servicing Agreement. Any such
determination made by the BACM 2006 1 Servicer, BACM 2006 1 Special Servicer or
BACM 2006 1 Trustee shall be conclusive and binding on the Certificateholders
and may, in all cases, be conclusively relied upon by the Master Servicer, the
Special Servicer and the Trustee, as applicable. In the case of a
Cross-Collateralized Mortgage Loan, such recoverability determination shall take
into account the cross collateralization of the related Cross-Collateralized
Mortgage Loan.
"Nonrecoverable Workout-Delayed Reimbursement Amounts": Any
Workout-Delayed Reimbursement Amounts when the Person making such determination
in accordance with the procedures specified for Nonrecoverable Property Advances
or Nonrecoverable P&I Advances, as applicable, and taking into account factors
such as all other outstanding Advances, either (a) has determined that such
Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from
late payments or any other recovery on or in respect of the related Mortgage
Loan or Serviced Loan or REO Loans or (b) has determined that such
Workout-Delayed Reimbursement Amounts would not ultimately be recoverable, along
with any other Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances, out of the principal portion of future collections on all of the
Mortgage Loans and REO Properties, from general principal collections in the
Collections Account.
"Note": With respect to any Mortgage Loan or Serviced Companion Loan
as of any date of determination, the note or other evidence of indebtedness
and/or agreements evidencing the indebtedness of a Borrower under such Mortgage
Loan or Serviced Companion Loan including any amendments or modifications, or
any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee and
the Master Servicer by the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Special Servicer or the Master Servicer
pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": As of any date of
determination: (i) with respect to all of the Class X Certificates as a Class,
the Class X Notional Amount as of such date of determination; and (ii) with
respect to any Class X Certificate, the product of the Percentage Interest
evidenced by such Certificate and the Class X Notional Amount as of such date of
determination.
"Officer's Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer, Special Servicer or Additional Servicer customarily performing
functions similar to those performed by any of the above designated officers,
any Servicing Officer and also with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject, or an authorized officer of the
Depositor, and delivered to the Depositor, the Trustee, the Special Servicer or
the Master Servicer, as the case may be.
"Operating Statement Analysis Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Operating Statement Analysis Report" available as of the Closing Date on
the CMSA Website or in such other form for the presentation of such information
and containing such additional information as may from time to time be
promulgated as recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC Provisions
on any income or property of either REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent
Contractor"), (c) qualification of the Grantor Trust as a grantor trust or (d) a
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, must be an opinion of counsel who is Independent of the Depositor and the
Master Servicer.
"Originator": Any of (i) the Mortgage Loan Sellers and (ii) with
respect to any Mortgage Loan acquired by a Mortgage Loan Seller, the originator
of such Mortgage Loan.
"Ownership Interest": Any record or beneficial interest in a Class R
or Class LR Certificate.
"Other Depositor": With respect to each Other Pooling and Servicing
Agreement, the related depositor thereunder.
"Other Indemnified Parties": As defined in Section 6.07.
"Other Pooling and Servicing Agreement": The BACM 2006-1 Pooling and
Servicing Agreement and any other pooling and servicing agreement entered into
in connection with an Other Securitization as from time to time amended,
supplemented or modified.
"Other Securitization": Any commercial mortgage securitization trust
that holds a Serviced Pari Passu Companion Loan or Non-Serviced Pari Passu Loan
or any successor REO Loan with respect thereto.
"Other Servicer": With respect to the Other Pooling and Servicing
Agreement, the related master servicer thereunder.
"Other Special Servicer": With respect to the Other Pooling and
Servicing Agreement, the related special servicer thereunder.
"Other Trustee": With respect to the Other Pooling and Servicing
Agreement, the related trustee thereunder.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.07. Each reference to the
payment or reimbursement of a P&I Advance shall be deemed to include, whether or
not specifically referred to and without duplication, payment or reimbursement
of interest thereon at the Advance Rate from and including the later of the date
of the making of such P&I Advance or the expiration of any applicable grace
period on the related Mortgage Loan to and including the date of payment or
reimbursement.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class S, Class R and Class LR Certificates), the rate for such
Class as set forth below:
Class Pass-Through Rate
----- -----------------
Class A-1........ Class A-1 Pass-Through Rate
Class A-2........ Class A-2 Pass-Through Rate
Class A-3........ Class A-3 Pass-Through Rate
Class A-AB....... Class A-AB Pass-Through Rate
Class A-4........ Class A-4 Pass-Through Rate
Class A-1A....... Class A-1A Pass-Through Rate
Class X.......... Class X Pass-Through Rate
Class A-M........ Class A-M Pass-Through Rate
Class A-J........ Class A-J Pass-Through Rate
Class B.......... Class B Pass-Through Rate
Class C.......... Class C Pass-Through Rate
Class D.......... Class D Pass-Through Rate
Class E.......... Class E Pass-Through Rate
Class F.......... Class F Pass-Through Rate
Class G.......... Class G Pass-Through Rate
Class H.......... Class H Pass-Through Rate
Class J.......... Class J Pass-Through Rate
Class K.......... Class K Pass-Through Rate
Class L.......... Class L Pass-Through Rate
Class M.......... Class M Pass-Through Rate
Class N.......... Class N Pass-Through Rate
Class O.......... Class O Pass-Through Rate
Class P.......... Class P Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan or Serviced
Companion Loan (or successor REO Loan), any amounts collected thereon that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate (other than the Class S
Certificate), the percentage interest evidenced thereby in distributions
required to be made with respect to the related Class. With respect to any
Certificate (except the Class S, Class R and Class LR Certificates), the
percentage interest is equal to the initial denomination of such Certificate
divided by the initial Certificate Balance or Notional Balance, as applicable,
of such Class of Certificates. With respect to any Class S, Class R or Class LR
Certificate, the percentage interest is set forth on the face thereof.
"Performing Loan": A Mortgage Loan or Serviced Whole Loan that is
not a Specially Serviced Loan or REO Loan.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee or any of its respective Affiliates and having
at all times the required ratings, if any, provided for in this definition,
unless each Rating Agency shall have confirmed in writing to the Master Servicer
that a lower rating would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates:
(a) direct obligations of, or obligations fully guaranteed as to
payment of principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); provided,
however, that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity, which
cannot vary or change, (B) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index plus a fixed spread
(if any) and move proportionately with that index, and (C) not be subject
to liquidation prior to its maturity;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit System (consolidated systemwide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however, that each
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, its interest rate tied to a
single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to their maturity;
(d) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating category
by each Rating Agency or, if not rated by S&P or Fitch, as applicable,
otherwise acceptable to S&P or Fitch, as applicable, and in each case as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates; provided, however, that the
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, have its interest rate tied to
a single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to its maturity;
(e) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, and, if such demand and time deposits in, or certificates of
deposit of, or bankers' acceptances are not fully insured by the Federal
Deposit Insurance Corporation, the short term obligations of such bank or
trust company, savings and loan association or savings bank are rated in
the highest short term rating category by each Rating Agency or, if not
rated by S&P or Fitch, as applicable, otherwise acceptable to S&P or
Fitch, as applicable, and in each case as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates; provided, however, that each investment described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a variable rate
of interest, its interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that index, and (C)
not be subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days rated
in the highest long-term unsecured rating category by each Rating Agency
or, if not rated by S&P or Fitch, as applicable, otherwise acceptable to
S&P or Fitch, as applicable, and in each case as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates; provided, however, that each investment described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a variable rate
of interest, have its interest rate tied to a single interest rate index
plus a fixed spread (if any) and move proportionately with that index, and
(C) not be subject to liquidation prior to its maturity;
(g) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
with maturities of not more than 365 days and that is rated in the highest
short-term unsecured debt rating by each Rating Agency or, if not rated by
S&P or Fitch, as applicable, otherwise acceptable to S&P or Fitch, as
applicable, and in each case as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates;
provided, however, that each investment described in this clause must (A)
have a predetermined fixed dollar amount of principal due at maturity,
which cannot vary or change, (B) if bearing a variable rate of interest,
have its interest rate tied to a single interest rate index plus a fixed
spread (if any) and move proportionately with that index, and (C) not be
subject to liquidation prior to their maturity;
(h) units of taxable money market mutual funds, issued by regulated
investment companies, which seek to maintain a constant net asset value
per share (including the Federated Prime Obligation Money Market Fund (the
"Fund")) so long as any such fund is rated in the highest short-term
unsecured debt ratings category by each Rating Agency or, if not rated by
S&P or Fitch, as applicable, otherwise acceptable to S&P or Fitch, as
applicable, and in each case as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates; and
(i) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment, provided that
each Rating Agency has confirmed in writing to the Master Servicer,
Special Servicer or Trustee, as applicable, that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings assigned to the Certificates.
provided, however, that no instrument or security shall be a Permitted
Investment (a) unless such instrument is a "cash flow investment" earning a
passive return in the nature of interest pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment or (c) if it
may be redeemed of a price below the purchase price. No Permitted Investment may
be purchased at a price in excess of par or sold prior to maturity if such sale
would result in a loss of principal or a tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a Class R or Class LR
Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar who is unable to provide an Opinion of Counsel (provided
at the expense of such Person or the Person requesting the Transfer) to the
effect that the Transfer of an Ownership Interest in any Class R or Class LR
Certificate to such Person will not cause any Trust REMIC to fail to qualify as
a REMIC at any time that the Certificates are outstanding, (c) a Person that is
a Disqualified Non-U.S. Person and (d) a Plan or any Person investing the assets
of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"PNC Bank": PNC Bank, National Association.
"Prepayment Assumption": The assumption that (i) each Mortgage Loan
(other than an ARD Loan) does not prepay prior to its respective Maturity Date
and (ii) each ARD Loan prepays on its Anticipated Repayment Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Mortgage Loans that were subject to
Principal Prepayment in full or in part, or as to which Insurance Proceeds,
Liquidation Proceeds or Condemnation Proceeds, as applicable, were received by
the Master Servicer or Special Servicer for application to such Mortgage Loans,
in each case after the Due Date in the month of such Distribution Date and on or
prior to the related Determination Date, the amount of interest accrued at the
Mortgage Rate for such Mortgage Loans on the amount of such Principal
Prepayments, Insurance Proceeds, Liquidation Proceeds and Condemnation Proceeds
after the Due Date relating to such Collection Period and accruing in the manner
set forth in the related Loan Documents, to the extent such interest is
collected by the Master Servicer or the Special Servicer (without regard to any
Prepayment Premium, Yield Maintenance Charge or Excess Interest actually
collected).
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that was subject to a Principal Prepayment in full
or in part and which did not include a full month's interest, or as to which
Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds, as
applicable, were received by the Master Servicer or Special Servicer for
application to such Mortgage Loan, in each case after the Due Date in the
calendar month preceding such Distribution Date but prior to the Due Date in the
related Collection Period, the amount of interest that would have accrued at the
Net Mortgage Pass-Through Rate for such Mortgage Loan on the amount of such
Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation
Proceeds during the period commencing on the date as of which such Principal
Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation Proceeds,
as applicable, were applied to the unpaid principal balance of the Mortgage Loan
and ending on (and including) the day immediately preceding such Due Date
(without regard to any Prepayment Premium, Yield Maintenance Charge or Excess
Interest actually collected).
"Prepayment Premium": Any premium, fee or other additional amount
(other than a Yield Maintenance Charge) paid or payable on a Mortgage Loan or
Serviced Companion Loan by a Borrower as the result of a Principal Prepayment
thereon, not otherwise due thereon, in respect of principal or interest, which
is intended to compensate the holder of the related Note for prepayment.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan or
Serviced Companion Loan, the rate per annum set forth on Exhibit B-2.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of The Wall Street Journal, Eastern edition (or, if such section or
publication is no longer available, such other comparable publication as
determined by the Trustee in its reasonable discretion) as may be in effect from
time to time, or, if the "Prime Rate" no longer exists, such other comparable
rate (as determined by the Trustee in its reasonable discretion) as may be in
effect from time to time. The Trustee shall notify in writing the Master
Servicer and the Special Servicer with regard to any determination of the Prime
Rate in accordance with the parenthetical in the preceding sentence.
"Principal Balance Certificate": The Class A-1, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates.
"Principal Distribution Amount": For any Distribution Date, an
amount equal to (i) the sum of:
(a) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on the related Due Date
(if received during the related Collection Period or advanced);
(b) the principal component of all Assumed Scheduled Payments due on
the related Due Date (if received during the related Collection Period or
advanced) with respect to any Mortgage Loan that is delinquent in respect
of its Balloon Payment;
(c) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the Trust Fund in
connection with a Breach or Defect pursuant to Section 2.03, purchased
pursuant to Section 3.18, or purchased from the Trust Fund pursuant to
Section 9.01;
(d) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan that was liquidated during the related Collection
Period;
(e) the principal component of all Balloon Payments and any other
principal payment on any Mortgage Loan received on or after the Maturity
Date thereof, to the extent received during the related Collection Period;
(f) all other Principal Prepayments on Mortgage Loans received in
the related Collection Period; and
(g) any other full or partial recoveries in respect of principal of
Mortgage Loans, including Insurance Proceeds, Liquidation Proceeds and Net
REO Proceeds received in the related Collection Period (including any
amount related to the Loss of Value Payments to the extent that such
amount was transferred into the Collection Account pursuant to Section
3.06(f) during the related Collection Period),
as reduced by (ii) any (1) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from principal collections
on the Mortgage Loans or, with respect to Property Advances, the Serviced Whole
Loans, in a period during which such principal collections would have otherwise
been included in the Principal Distribution Amount for such Distribution Date
and (2) Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans or, with respect to Property
Advances, the Serviced Whole Loans, in a period during which such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date (provided, that, in the case of clauses (1)
and (2) above, if any of the amounts that were reimbursed from principal
collections on the Mortgage Loans or, with respect to Property Advances, the
Serviced Whole Loans, are subsequently recovered on the related Mortgage Loan
or, with respect to Property Advances, the Serviced Whole Loan, such recovery
will increase the Principal Distribution Amount for the Distribution Date
related to the period in which such recovery occurs).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a Borrower
on a Mortgage Loan or Serviced Companion Loan which is received in advance of
its scheduled Due Date and which is not accompanied by an amount of interest
representing the full amount of scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global Certificates with respect to the Class X, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates if and so long as such class of Certificates
is registered in the name of a nominee of the Depository.
"Private Placement Memorandum": Means the Private Placement
Memorandum, dated May 26, 2006, pursuant to which the Class X, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class S, Class R and Class LR Certificates will be offered for sale.
"Privileged Person": Means a party to this Agreement, a Rating
Agency, a designee of the Depositor (including any financial market publisher),
the initial Controlling Class Representative, each Underwriter and any other
person who delivers to the Trustee in the form attached hereto as Exhibit L
(which form may be provided by the Trustee upon request), a certification that
such person is a Certificateholder, a Certificate Owner of a Certificate or a
prospective purchaser of a Certificate.
"Prohibited Party: Any proposed Servicing Function Participant (i)
that is listed on the Depositor's Do Not Hire List or (ii) for which the Master
Servicer, the Special Servicer or the Trustee that seeks to retain such
Servicing Function Participant has actual knowledge obtained by written notice
or through actual experience that such party at any point prior to such hiring,
assignment or transfer failed to comply with the Servicing Function
Participant's obligations under Regulation AB with respect to any other
securitization.
"Property Advance": As to any Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan, any advance made by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in respect
of Property Protection Expenses or any expenses incurred to protect, preserve
and enforce the security for a Mortgage Loan or a Serviced Whole Loan or to pay
taxes and assessments or insurance premiums with respect to the related
Mortgaged Property, to the extent the making of any such advance is specifically
provided for in this Agreement, including, but not limited to, as provided in
Section 3.04 and Section 3.24, as applicable. Each reference to the payment or
reimbursement of a Property Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of interest thereon at the
Advance Rate from and including the date of the making of such Advance to and
including the date of payment or reimbursement. Notwithstanding anything to the
contrary, "Property Advance" shall not include allocable overhead of the Master
Servicer or the Special Servicer, as applicable, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses or costs and expenses incurred
by any such party in connection with its purchase of a Mortgage Loan or REO
Property.
"Property Protection Expenses": With respect to any Mortgage Loan
(other than the Non-Serviced Mortgage Loan) or Serviced Companion Loan, any
costs and expenses incurred by the Master Servicer or the Special Servicer
pursuant to Sections 3.04, 3.08(a), 3.10(b), 3.10(e), 3.10(f), 3.10(h), 3.10(i),
3.10(k), 3.11, 3.12(e), 3.17(a), 3.17(b), 3.17(c), 3.18(g) or 3.28(a) or
indicated herein as being payable as a Property Advance or as a cost or expense
of the Trust Fund (and, in the case of the Serviced Whole Loans, the Serviced
Companion Loan Noteholders but subject to the provisions of Section 1.02(e)) or
the Lower-Tier REMIC, or Upper-Tier REMIC to be paid out of the Collection
Account.
"Prospectus": The Depositor's Prospectus dated May 26, 2006, as
supplemented by the Prospectus Supplement dated May 26, 2006, relating to the
offering of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B and Class C Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a rating of "A-" or better
by Fitch and an insurance financial strength rating of "A-" or better by S&P and
(ii) in the case of the fidelity bond and the errors and omissions insurance
required to be maintained pursuant to Section 3.08(d), shall have a claims
paying ability rated by each Rating Agency no lower than two ratings categories
(without regard to pluses or minuses or numeric qualifications) lower than the
highest rating of any outstanding Class of Certificates from time to time, but
in no event lower than "A" by Fitch (or if such company is not rated by Fitch,
is rated at least A:IX by A.M. Best's Key Rating Guide) and in the case of S&P,
an insurance financial strength rating of "A" or better, unless in any such case
each of the Rating Agencies has confirmed in writing that obtaining the related
insurance from an insurance company that is not rated by each of the Rating
Agencies (subject to the foregoing exceptions) or that has a lower claims-paying
ability than such requirements shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then-current ratings by such
Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": A mortgage loan which must,
on the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and/or interest due
during or prior to the month of substitution, whether or not received, not in
excess of the Stated Principal Balance of the Removed Mortgage Loan as of the
Due Date in the calendar month during which the substitution occurs; (ii) have a
Mortgage Rate not less than the Mortgage Rate of the Removed Mortgage Loan;
(iii) have the same Due Date as the Removed Mortgage Loan; (iv) accrue interest
on the same basis as the Removed Mortgage Loan (for example, on the basis of a
360-day year and the actual number of days elapsed); (v) have a remaining term
to stated maturity not greater than, and not more than two years less than, the
remaining term to stated maturity of the Removed Mortgage Loan; (vi) have an
original loan to value ratio not higher than that of the Removed Mortgage Loan
and a current loan to value ratio not higher than the then current loan-to-value
ratio of the Removed Mortgage Loan; (vii) materially comply as of the date of
substitution with all of the representations and warranties set forth in the
applicable Mortgage Loan Purchase Agreement; (viii) have an Environmental Report
that indicates no material adverse environmental conditions with respect to the
related Mortgaged Property and that will be delivered as a part of the related
Servicing File; (ix) have an original Debt Service Coverage Ratio of not less
than the original Debt Service Coverage Ratio of the Removed Mortgage Loan and a
current Debt Service Coverage Ratio of not less than the current Debt Service
Coverage Ratio of the Removed Mortgage Loan; (x) be determined by an Opinion of
Counsel (at the applicable Mortgage Loan Seller's expense) to be a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date that is three years prior to the Rated
Final Distribution Date; (xii) not be substituted for a Removed Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not in and of itself result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates then rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to be paid by the applicable Mortgage
Loan Seller) (provided that no such confirmation from any Rating Agency shall be
required with respect to any Companion Loan Securities); (xiii) have been
approved by the Controlling Class Representative in its sole discretion; (xiv)
prohibit defeasance within two years after the Closing Date, (xv) not be
substituted for a Removed Mortgage Loan if it would result in the termination of
the REMIC status of any Trust REMIC or the imposition of tax on any of such
REMICs other than a tax on income expressly permitted or contemplated to be
received by the terms of this Agreement, as determined by an Opinion of Counsel
and (xvi) if the Removed Mortgage Loan is part of Loan Group 2, have the same
property type designation as the Removed Mortgage Loan. In the event that one or
more mortgage loans are substituted for one or more Removed Mortgage Loans, then
the amounts described in clause (i) shall be determined on the basis of
aggregate Stated Principal Balances and the rates described in clause (ii) above
and the remaining term to stated maturity referred to in clause (v) above shall
be determined on a weighted average basis; provided that no individual Mortgage
Rate shall be lower than the highest Pass-Through Rate (that is a fixed rate not
subject to a cap equal to the Weighted Average Net Mortgage Rate) of any Class
of Principal Balance Certificates having an outstanding Certificate Balance.
When a Qualified Substitute Mortgage Loan is substituted for a Removed Mortgage
Loan, the applicable Mortgage Loan Seller shall certify that the Mortgage Loan
meets all of the requirements of the above definition and shall send such
certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date in June 2046.
"Rating Agency": means any of S&P and Fitch; provided, that with
respect to any matter affecting the Non-Serviced Mortgage Loan or any Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, "Rating Agency" shall also
refer to any rating agency rating securities related to such Non-Serviced
Mortgage Loan or Serviced Pari Passu Loan.
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the amount,
if any, by which (i) the aggregate Certificate Balance of the Principal Balance
Certificates after giving effect to distributions of principal on such
Distribution Date exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Loans in the Mortgage Pool (for purposes of this calculation only, not
giving effect to any reductions of the Stated Principal Balance for principal
payments received on the Mortgage Loans in the Mortgage Pool that were used to
reimburse the Master Servicer or the Trustee from general collections of
principal on the Mortgage Loans for Workout-Delayed Reimbursement Amounts, to
the extent such Workout-Delayed Reimbursement Amounts are not otherwise
determined to be Nonrecoverable Advances) immediately following the
Determination Date preceding such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l(a)(viii).
"Reconciliation of Funds Report": A report prepared by the Trustee
substantially in the form of, and containing the information called for in, the
downloadable form of the "Reconciliation of Funds Report" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Reconciliation
of Funds Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, the Master Servicer or the Special
Servicer, as applicable.
"Record Date": With respect to each Distribution Date, the close of
business on the last day of the calendar month preceding the month in which such
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in July 2006, the Record Date will be the Closing Date.
"Regular Certificates": The Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest
in a Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"Relevant Servicing Criteria": The Servicing Criteria applicable to
each Reporting Servicer (as set forth, with respect to the Master Servicer, the
Special Servicer and the Trustee, on Schedule II attached hereto). For
clarification purposes, multiple Reporting Servicers can have responsibility for
the same Relevant Servicing Criteria and some of the Servicing Criteria will not
be applicable to certain Reporting Servicers. With respect to a Servicing
Function Participant engaged by the Trustee, the Master Servicer or the Special
Servicer, the term "Relevant Servicing Criteria" refers to the items of the
Relevant Servicing Criteria applicable to the Trustee, the Master Servicer or
the Special Servicer that engaged such Servicing Function Participant that are
applicable to such Servicing Function Participant based on the functions it has
been engaged to perform.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the REMIC Provisions.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
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.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased from
the Trust Fund pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Rents from Real Property": With respect to any Serviced REO
Property, gross income of the character described in Section 856(d) of the Code,
which income, subject to the terms and conditions of that Section of the Code in
its present form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
Serviced REO Property, if the determination of such amount depends in
whole or in part on the income or profits derived by any Person from such
property (unless such amount is a fixed percentage or percentages of
receipts or sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such Serviced REO Property if any Person Directly Operates such
Serviced REO Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such
Serviced REO Property within the meaning of Treasury Regulations Section
1.856-4(b)(1) (whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such
Serviced REO Property and, for any taxable year of the Trust Fund, such
rent is no greater than 15 percent of the total rent received or accrued
under, or in connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Loan": Any Mortgage Loan, Non-Serviced Mortgage Loan or
Serviced Whole Loan as to which the related Mortgaged Property has become an REO
Property.
"REO Proceeds": With respect to any Serviced REO Property and the
related Serviced REO Loan, all revenues received by the Special Servicer with
respect to such Serviced REO Property or Serviced REO Loan which do not
constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property title to which has been
acquired by the Special Servicer on behalf of the Trust Fund through
foreclosure, deed in lieu of foreclosure or otherwise, or in the case of the
Non-Serviced Mortgage Loan, the Trust Fund's beneficial interest in the
Mortgaged Property acquired by the Other Trustee pursuant to the Other Pooling
Agreement.
"REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan
that is substituted for one or more Removed Mortgage Loans.
"Reportable Event": As defined in Section 10.9.
"Reporting Servicer": The Master Servicer, the Special Servicer
(regardless of whether the Special Servicer has commenced special servicing of
any Mortgage Loan), the Trustee, and each Servicing Function Participant.
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased or purchased pursuant to Sections 2.03(d) or 9.01, or any Specially
Serviced Loan or any Serviced REO Loan to be sold pursuant to Section 3.18, an
amount, calculated by the Master Servicer or the Special Servicer, as
applicable, equal to:
(a) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
(b) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate in effect from time to time to but not including the
Due Date in the month of purchase; plus
(c) all related unreimbursed Property Advances plus accrued and
unpaid interest on related Advances at the Advance Rate, and Special
Servicing Fees and Workout Fees allocable to such Mortgage Loan (and, in
the case of the Non-Serviced Mortgage Loan, unpaid fees payable to the
Other Servicer, the Other Special Servicer or the Other Trustee allocable
to such Mortgage Loan); plus
(d) any Liquidation Fee due pursuant to Section 3.12 hereunder
allocable to such Mortgage Loan; plus
(e) if such Mortgage Loan (or related REO loan) is being purchased
by a Mortgage Loan Seller pursuant to Section 2.03(d), to the extent not
otherwise included in the amount described in clause (c) of this
definition, all reasonable out-of-pocket expenses reasonably incurred or
to be incurred by the Master Servicer, the Special Servicer, the Depositor
and the Trustee in respect of the Breach or Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation, including, without duplication,
any amounts previously reimbursed from the Collection Account or the
applicable Serviced Whole Loan Collection Account, as applicable, plus
accrued and unpaid interest thereon at the Advance Rate, to the extent
payable to the Master Servicer, the Special Servicer or the Trustee.
For purposes of this Agreement, the "Repurchase Price" in respect of
a sale of a Serviced REO Property securing a Serviced Whole Loan, the term
Mortgage Loan shall be construed to include any related Companion Loans and/or B
Loan.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan (other than
the Non-Serviced Mortgage Loan) or Serviced Whole Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account may be a sub-account of a related Cash Collateral
Account. Any Reserve Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive the reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. The Master Servicer shall be permitted to make withdrawals
therefrom for deposit into the Cash Collateral Account, if applicable, or the
Collection Account or for the purposes set forth under the related Mortgage Loan
or Serviced Whole Loan.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following the applicable Mortgage Loan
Seller's receipt of written notice from the Master Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(c) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a not a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier of
the end of such Initial Resolution Period and the applicable Mortgage Loan
Seller's receipt of written notice from the Master Servicer or the Special
Servicer of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a Specially Serviced Loan as of the commencement
of the applicable Initial Resolution Period, zero (-0-) days; provided
that, if the applicable Mortgage Loan Seller did not receive written
notice from the Master Servicer or the Special Servicer of the relevant
Servicing Transfer Event as of the commencement of the applicable Initial
Resolution Period, then such Servicing Transfer Event shall be deemed to
have occurred during such Initial Resolution Period and clause (c) of this
definition will be deemed to apply.
The applicable Mortgage Loan Seller shall have an additional 90 days
beyond any cure period specified above to cure such Material Defect or Material
Beach; provided that, the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Defect or Material Breach and such
failure to cure is solely the result of a delay in the return of documents from
the local filing or recording authorities.
"Responsible Officer": Any officer of the Trustee assigned to the
Corporate Trust Office (and, in the event that the Trustee is the Certificate
Registrar or the Paying Agent, of the Certificate Registrar or the Paying Agent,
as applicable) with direct responsibility for the administration of this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Responsible Officer, such an officer whose name and
specimen signature appears on a list of corporate trust officers furnished to
the Master Servicer by the Trustee, as such list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the Initial Purchasers and any other distributor
(as defined in Regulation S) of the Certificates and (b) the Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Global Certificate": Each of the Class X, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
O and Class P Certificates issued as such on the Closing Date.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act": The Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification": As defined in Section 10.08.
"Securities Legend": With respect to each Residual Certificate or
any Individual Certificate, the legend set forth in, and substantially in the
form of, Exhibit F hereto.
"Serviced B Loan": Each of the Buckeye Portfolio B Loan and/or the
Valley Forge B Loan, as applicable and as the context may require.
"Serviced B Loan Noteholder": A holder of a Serviced B Loan.
"Serviced Companion Loan": Each of the Buckeye Portfolio Companion
Loan and/or the Valley Forge Companion Loan, as applicable and as the context
may require.
"Serviced Companion Loan Noteholder": A holder of a Serviced
Companion Loan.
"Serviced Companion Loan Noteholder Register": As defined in Section
3.32(b).
"Serviced Companion Loan Securities": For so long as the Mortgage
Loan related thereto or any successor Serviced REO Loan thereof is part of the
Mortgage Pool, any class of securities backed by a Serviced Companion Loan. Any
reference herein to a "series" of Serviced Companion Loan Securities shall refer
to separate securitizations of one or more of the Serviced Companion Loans.
"Serviced Companion Loan Securitization Agreement": With respect to
any Serviced Companion Loan, any agreement under which any securities evidencing
interests in such Serviced Companion Loan are issued, as from time to time
amended, supplemented or modified.
"Serviced Companion Loan Service Provider": With respect to any
Serviced Passu Companion Loan that has been deposited into a securitization
trust, the related trustee, master servicer, special servicer, sub servicer and
any other Person that makes principal and/or interest advances in respect of
such mortgage loan pursuant to the related pooling and servicing agreement.
"Serviced Companion Loan Trustee": With respect to any Serviced
Companion Loan, the trustee with respect to such Serviced Companion Loan
appointed and acting under the related Serviced Companion Loan Securitization
Agreement, if any.
"Serviced Mortgage Loan": Each of the Buckeye Portfolio Mortgage
Loan and the Valley Forge Mortgage Loan, as the context may require and as
applicable.
"Serviced Pari Passu Companion Loan": There are no Serviced Pari
Passu Companion Loans in this transaction.
"Serviced Pari Passu Companion Loan Noteholder": Any holder of a
Serviced Pari Passu Companion Loan.
"Serviced REO Loan": Any REO Loan that is serviced by the Special
Servicer pursuant to this Agreement.
"Serviced REO Property": Any REO Property that is serviced by the
Special Servicer pursuant to this Agreement.
"Serviced Whole Loan": Each of the Buckeye Portfolio Whole Loan and
the Valley Forge Whole Loan, as the context may require and as applicable.
"Serviced Whole Loan Collection Account": With respect to each
Serviced Whole Loan, the separate account or subaccount created and maintained
by the Master Servicer pursuant to Section 3.05(h) on behalf of the
Certificateholders and the related Serviced Companion Loan Noteholders, which
shall be entitled "Midland Loan Services, Inc., as Master Servicer for the
Certificateholders and the Companion Loan Noteholders relating to, and for the
benefit of Xxxxx Fargo Bank, N.A., as Trustee, in trust for the Holders of,
Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7 Commercial
Mortgage Pass-Through Certificates, Serviced Whole Loan Collection Account."
Amounts in any Serviced Whole Loan Collection Account applicable to the related
Serviced Companion Loans shall not be assets of the Trust Fund, but instead
shall be held by the Master Servicer on behalf of the Trust Fund (in respect of
amounts reimbursable therefrom) and, the related Serviced Companion Loan
Noteholders. Any such account or subaccount shall be an Eligible Account.
"Serviced Whole Loan Remittance Amount": For each distribution date
that the Master Servicer is required to make a distribution to a Serviced
Companion Loan Noteholder pursuant to Section 3.05(i) and with respect to each
Serviced Whole Loan and related Mortgaged Property (if it becomes a Serviced REO
Property), any amount received by the Master Servicer (or, with respect to a
Serviced REO Property, the Special Servicer) during the related Collection
Period that is payable to the Serviced Companion Loan Noteholder pursuant to the
related Co-Lender Agreement or to be remitted to the Collection Account.
"Serviced Whole Loan REO Account": As defined in Section 3.17(b).
"Service(s)(ing)": In accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is referenced in the disclosure requirements set forth in Item
1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"Servicer Prepayment Interest Shortfall": As defined in Section
3.19(c).
"Servicer Remittance Date": With respect to any Distribution Date,
the Business Day preceding such Distribution Date.
"Servicing Compensation": With respect to any Collection Period, the
related Servicing Fee, Net Prepayment Interest Excess, if any, and any other
fees, charges or other amounts payable to the Master Servicer under this
Agreement for such period.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fee": With respect to each Mortgage Loan or Serviced Pari
Passu Companion Loan and for any Distribution Date, an amount per Interest
Accrual Period equal to the product of (i) the respective Servicing Fee Rate and
(ii) the Stated Principal Balance of such Mortgage Loan or Serviced Pari Passu
Companion Loan as of the Due Date in the immediately preceding Collection Period
(without giving effect to payments of principal on such Mortgage Loan or
Serviced Pari Passu Companion Loan on such Due Date). The Servicing Fee shall be
calculated in accordance with the provisions of Section 1.02(a). For the
avoidance of doubt, with respect to any B Loan, no Servicing Fee shall accrue on
the Stated Principal Balance thereof.
"Servicing Fee Rate": With respect to each Mortgage Loan or Serviced
Pari Passu Companion Loan, the sum of the Master Servicing Fee Rate and the
related Primary Servicing Fee Rate, if any, which rates per annum are set forth
on Exhibit B-2 to this Agreement.
"Servicing File": As defined in the related Mortgage Loan Purchase
Agreement.
"Servicing Function Participant": Any Person, other than the Master
Servicer, the Special Servicer and the Trustee, that, within the meaning of Item
1122 of Regulation AB, is performing activities that address the Servicing
Criteria, unless such Person's activities relate only to 5% or less of the
Mortgage Loans (based on their Stated Principal Balance).
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or, Serviced Companion Loans,
or this Agreement and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's or employee's
knowledge of and familiarity with the particular subject, and, in the case of
any certification required to be signed by a Servicing Officer, such an officer
or employee whose name and specimen signature appears on a list of servicing
officers furnished to the Trustee by the Master Servicer or the Special
Servicer, as applicable, as such list may from time to time be amended.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, shall mean to diligently service and administer the Mortgage
Loans (other than the Non-Serviced Mortgage Loan) and the Serviced Whole Loans
for which each is responsible in the best interests of and for the benefit of
all of the Certificateholders and, with respect to each Serviced Whole Loan, for
the benefit of the Serviced Companion Loan Noteholders (as a collective whole,
but giving due consideration to the subordinate nature of any B Loan as
determined by the Master Servicer or the Special Servicer, as the case may be,
in the exercise of its reasonable judgment) in accordance with applicable law,
the terms of this Agreement, the terms of the related Co-Lender Agreement, as
applicable, and the Mortgage Loans or Serviced Whole Loans, as applicable, and
to the extent not inconsistent with the foregoing, in accordance with the higher
of the following standards of care:
(a) the same manner in which, and with the same care, skill,
prudence and diligence with which the Master Servicer or the Special
Servicer, as the case may be, services and administers similar mortgage
loans for other third-party portfolios, giving due consideration to the
customary and usual standards of practice of prudent institutional
commercial and multifamily mortgage lenders servicing their own mortgage
loans with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or Specially
Serviced Loans, as applicable, and the best interests of the Trust and the
Certificateholders and, with respect to any Serviced Whole Loan, the
Certificateholders, the related Serviced Companion Loan Noteholders (as a
collective whole, but giving due consideration to the subordinate nature
of any B Loan as determined by the Master Servicer or the Special
Servicer, as the case may be, in its reasonable judgment); and
(b) the same care, skill, prudence and diligence with which the
Master Servicer or the Special Servicer, as the case may be, services and
administers commercial and multifamily mortgage loans owned by the Master
Servicer or the Special Servicer, as the case may be, with a view to the
maximization of timely recovery of principal and interest on a net present
value basis on the Mortgage Loans or Specially Serviced Loans, as
applicable, and the best interests of the Trust and the Certificateholders
and, with respect to any Serviced Whole Loan, the Certificateholders, the
related Serviced Companion Loan Noteholders (as a collective whole, but
giving due consideration to the subordinate nature of any B Loan as
determined by the Master Servicer or the Special Servicer, as the case may
be, in its reasonable judgment),
but without regard to (a) any relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate of the Master Servicer or
the Special Servicer, may have with the related Borrower, any Mortgage Loan
Seller, any other party to this Agreement or any Affiliate of the foregoing; (b)
the ownership of any Certificate, any Non-Serviced Mortgage Loan or any Serviced
Companion Loan by the Master Servicer or the Special Servicer, as the case may
be, or any Affiliate of the Master Servicer or the Special Servicer; (c) the
Master Servicer's obligation to make Advances; (d) the Master Servicer's or the
Special Servicer's, as the case may be, right to receive compensation for its
services hereunder or with respect to any particular transaction; (e) the
ownership, servicing or management for others of any other mortgage loans or
mortgaged properties by the Master Servicer or the Special Servicer or any
Affiliate of the Master Servicer or the Special Servicer, as applicable; (f) any
debt that the Master Servicer or the Special Servicer or any Affiliate of the
Master Servicer or the Special Servicer, as applicable, has extended to any
Borrower or an Affiliate of any Borrower (including, without limitation, any
mezzanine financing); and (g) any obligation of the Master Servicer, the Special
Servicer or any Affiliate thereof, to repurchase or substitute for a Mortgage
Loan as Mortgage Loan Seller.
"Servicing Transfer Event": An event specified in the definition of
Specially Serviced Loan.
"Similar Law": As defined in Section 5.02(k) hereof.
"Small Loan Appraisal Estimate": With respect to any Mortgage Loan
having a Stated Principal Balance of less than $2,000,000, the Special
Servicer's good faith estimate of the value of such Mortgage Loan, as certified
to the Master Servicer by the Special Servicer.
"SNDA": As defined in Section 3.30(n)(1) hereof.
"Sole Certificateholder": Any Holder (or Holders, provided they act
in unanimity) holding 100% of the then outstanding Class X, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O
and Class P Certificates or an assignment of the voting rights thereof;
provided, however, that the Certificate Balances of the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B and
Class C Certificates have been reduced to zero.
"Special Servicer": CWCapital Asset Management LLC, a Massachusetts
limited liability company, or its successor in interest, or any successor
special servicer appointed as provided in Section 3.25, including without
limitation any successor special servicer appointed with respect to a specific
Serviced Whole Loan pursuant to Section 3.25. In the event that the Master
Servicer is also the Special Servicer hereunder, and the Master Servicer is
terminated or resigns as the Master Servicer hereunder, the Master Servicer
shall be terminated as the Special Servicer hereunder. In the event there is
more than one Special Servicer administering Specially Serviced Loans hereunder,
each reference in this Agreement to the "Special Servicer" shall be construed to
apply to the Special Servicer then servicing that particular Mortgage Loan or
Serviced Whole Loan.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other
fees, charges or other amounts which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Loan (or Serviced REO Loan) for each calendar month (or portion thereof), the
fraction of the Special Servicing Fee Rate applicable to such month, or portion
thereof (determined using the same interest accrual methodology that is applied
with respect to the Mortgage Rate for such Mortgage Loan for such month)
multiplied by the Stated Principal Balance of such Specially Serviced Loan
(subject, in the case of the Buckeye Portfolio Whole Loan, to the terms of the
Buckeye Intercreditor Agreement) as of the Due Date (without giving effect to
all payments of principal on such Specially Serviced Loan or Serviced REO Loan
on such Due Date) in the Collection Period prior to such Distribution Date (or,
in the event that a Principal Prepayment in full or an event described in
clauses (i)-(vii) under the definition of Liquidation Proceeds shall occur with
respect to any such Specially Serviced Loan or Serviced REO Loan on a date that
is not a Due Date, on the basis of the actual number of days to elapse from and
including the most recently preceding related Due Date to but excluding the date
of such Principal Prepayment or Liquidation Proceeds event in a month consisting
of 30 days).
"Special Servicing Fee Rate": A rate equal to 0.25% per annum.
"Specially Serviced Loan": Subject to Section 3.26, any Mortgage
Loan (other than the Non-Serviced Mortgage Loan) or Serviced Whole Loan with
respect to which:
(a) either (i) with respect to such Mortgage Loan or Serviced
Companion Loan other than a Balloon Loan, a payment default shall have
occurred on such Mortgage Loan or Serviced Companion Loan at its Maturity
Date or, if the Maturity Date of such Mortgage Loan or Serviced Companion
Loan has been extended in accordance herewith, a payment default occurs on
such Mortgage Loan or Serviced Companion Loan at its extended Maturity
Date or (ii) with respect to a Balloon Loan, a payment default shall have
occurred with respect to the related Balloon Payment; provided, however,
that if (a) the related Borrower is diligently seeking a refinancing
commitment (and delivers a statement to that effect to the Special
Servicer and the Controlling Class Representative within 30 days after
such default), (b) the related Borrower continues to make its Assumed
Scheduled Payment, (c), no other Servicing Transfer Event shall have
occurred with respect to such Mortgage Loan or Serviced Companion Loan and
(d) the Controlling Class Representative consents, a Servicing Transfer
Event will not occur until 60 days beyond the related Maturity Date; and
provided, further, if the related Borrower delivers to the Special
Servicer and the Controlling Class Representative, on or before the 60th
day after the related Maturity Date, a refinancing commitment reasonably
acceptable to the Special Servicer and the Controlling Class
Representative, and such Borrower continues to make its Assumed Scheduled
Payments (and no other Servicing Transfer Event shall have occurred with
respect to that Mortgage), a Servicing Transfer Event will not occur until
the earlier of (1) 120 days beyond the related Maturity Date and (2) the
termination of the refinancing commitment;
(b) any Monthly Payment (other than a Balloon Payment) is 60 days or
more delinquent;
(c) the date upon which the Master Servicer or Special Servicer
(with the consent of the Controlling Class Representative in the case of a
determination by the Special Servicer and subject to the Special Servicing
delay, in case of the Valley Forge Loan Combination) determines that a
payment default or any other default under the applicable Loan Documents
that (with respect to such other default) would materially impair the
value of the Mortgaged Property as security for the Mortgage Loan and, if
applicable, Serviced Companion Loan or otherwise would materially
adversely affect the interests of Certificateholders and, if applicable,
the holder of the related Serviced Companion Loan and would continue
unremedied beyond the applicable grace period under the terms of the
related Loan Documents (or, if no grace period is specified for 60 days
and provided that a default that would give rise to an acceleration right
without any grace period will be deemed to have a grace period equal to
zero) is imminent and is not likely to be cured by the related Borrower
within 60 days or, except as provided in clause (a)(ii) above, in the case
of a Balloon Payment, for at least 30 days;
(d) the date upon which the related Borrower has become a subject of
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, or the
appointment of a conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, provided
that if such decree or order has been dismissed, discharged or stayed
within 60 days thereafter, such Mortgage Loan or Serviced Whole Loan shall
no longer be a Specially Serviced Loan and no Special Servicing Fees shall
be payable with respect thereto;
(e) the date on which the related Borrower consents to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Borrower of or relating to all or
substantially all of its property;
(f) the date on which the related Borrower admits in writing its
inability to pay its debts generally as they become due, files a petition
to take advantage of any applicable insolvency or reorganization statute,
makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations;
(g) a default, of which the Master Servicer or Special Servicer has
notice (other than a failure by such related Borrower to pay principal or
interest) and which in the opinion of the Master Servicer or Special
Servicer (in the case of the Special Servicer, with the consent of the
Controlling Class Representative) materially and adversely affects the
interests of the Certificateholders or any holder of a Serviced Companion
Loan, if applicable, occurs and remains unremedied for the applicable
grace period specified in the Loan Documents for such Mortgage Loan or
Serviced Whole Loan (or if no grace period is specified for those defaults
which are capable of cure, 60 days); or
(h) the date of which the Master Servicer or Special Servicer
receives notice of the foreclosure or proposed foreclosure of any lien on
the related Mortgaged Property;
provided, however, that such Mortgage Loan or Serviced Whole Loan will cease to
be a Specially Serviced Loan (each, a "Corrected Mortgage Loan") (i) with
respect to the circumstances described in clauses (a) and (b) above, when the
related Borrower thereunder has brought such Mortgage Loan or Serviced Whole
Loan current and thereafter made three consecutive full and timely Monthly
Payments, including pursuant to any workout of such Mortgage Loan or Serviced
Whole Loan, (ii) with respect to the circumstances described in clause (c), (d),
(e), (f) and (h) above, when such circumstances cease to exist in the good faith
judgment of the Special Servicer, and (iii) with respect to the circumstances
described in clause (g) above, when such default is cured; provided, in each
case, that at that time no circumstance exists (as described above) that would
cause such Mortgage Loan or Serviced Whole Loan to continue to be characterized
as a Specially Serviced Loan.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standard, the servicing rights and obligations of
the Special Servicer with respect to the Buckeye Portfolio B Loan will be
limited pursuant to the terms of the Buckeye Portfolio Intercreditor Agreement
prior to, or after the discontinuance of, a "Material Default" (as defined in
Section 3(b) of the Buckeye Intercreditor Agreement).
If a Servicing Transfer Event exists with respect to any Mortgage
Loan included in a Serviced Whole Loan, then it will also be deemed to exist
with respect to the related Serviced Companion Loans, and vice versa. If any
Mortgage Loan in a group of Cross-Collateralized Mortgage Loans becomes a
Specially Serviced Loan, each other Mortgage Loan in such group of
Cross-Collateralized Mortgage Loans shall also become a Specially Serviced Loan.
Notwithstanding the foregoing, with respect to the Valley Forge
Whole Loan, a Servicing Transfer Event that occurs as a result of the
determination by the Master Servicer or the Special Servicer that a payment
default is imminent, as described in clause (c) above, will be delayed (unless
an event described in clause (b) or (d) above has occurred that has not been or
is not being cured by the related Mortgagor or unless an event described in
clause (a), (d), (e), (f) or (g) above is also occurring) (a "Special Servicing
Delay") if, by the earlier to occur of the next Due Date on the Valley Forge
Whole Loan, as applicable, and the fifth Business Day following notice to the
Directing Certificateholder of such event (if notice is given no later than five
Business Days prior to the next Due Date after the occurrence of such event),
the holder of the related Serviced B Note shall have deposited with the Servicer
an amount equal to the monthly debt service payment for the Valley Forge
Mortgage Loan, as applicable, due on the first Due Date following such deposit;
provided, however, that such deposit shall be irrevocable at any time on or
prior to such first Due Date. Such deposit shall be applied by the Servicer to
debt service in the event that the related Mortgagor fails to make the monthly
debt service payment on such Due Date (which deposit shall constitute an
exercise of the cure rights of the holder of the related Serviced B Note under
the Valley Forge Intercreditor Agreement); provided, however,
(A) if the related Mortgagor makes the monthly debt service payment
on the first Due Date but the payment default described in clause (iii) above is
still determined by the Servicer or the Special Servicer to be imminent, then
the Servicer shall either (1) retain such deposit for application on the second
Due Date following the date of such deposit, or (2) return such deposit to the
holder of the related Serviced B Note on the Business Day following the written
request for such return (so long as such request is made on or prior to the
fifth Business Day following the Due Date following the date of deposit) (in
which event there will no longer exist a Special Servicing Delay and a Servicing
Transfer Event may be determined to have occurred); and
(B) if the related Mortgagor makes the monthly debt service payment
on the first Due Date and the payment default described in clause (iii) above is
no longer determined by the Servicer or the Special Servicer to be imminent, the
Servicer shall return such deposit to the holder of the applicable Serviced B
Note on the Business Day following the Due Date following the date of deposit.
The right of the holder of the related Serviced B Note to cure an
event of default under the Valley Forge Intercreditor Agreement or to cause a
Special Servicing Delay is subject to the limitations set forth in such
Co-Lender Agreement. Any such deposit by the holder of the applicable Serviced B
Note shall be treated as an "outside reserve fund" for purposes of the REMIC
Provisions, and the holder of such Serviced B Note shall be treated as the
beneficial owner thereof or of any reimbursement from the Trust Fund, and shall
be taxable on any reinvestment income thereon.
"Startup Day": In the case of the Upper-Tier REMIC and Lower-Tier
REMIC, the day designated as such pursuant to Section 2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
Serviced Whole Loan, on any date of determination, the principal balance as of
the Cut-off Date of such Mortgage Loan or Serviced Whole Loan (or in the case of
a Replacement Mortgage Loan, the outstanding principal balance as of the related
date of substitution and after application of all scheduled payments of
principal and interest due on or before the related Due Date in the month of
substitution, whether or not received), as reduced on each Distribution Date (to
not less than zero) by (i) all payments (or P&I Advances in lieu thereof) of,
and all other collections allocated as provided in Section 1.02 to, principal of
or with respect to such Mortgage Loan or Serviced Whole Loan that are
distributed to Certificateholders or Serviced Companion Loan Noteholder on such
Distribution Date or applied to any other payments required under this Agreement
on or prior to such date of determination, and (ii) any principal forgiven by
the Special Servicer (or with respect to the Non-Serviced Mortgage Loan, by the
Other Special Servicer) and other principal losses realized in respect of such
Mortgage Loan or Serviced Whole Loan during the related Collection Period (or
with respect to the Non-Serviced Mortgage Loan, other principal losses realized
in respect of the Non-Serviced Mortgage Loan during the related Collection
Period as determined in accordance with the terms of the Other Pooling and
Servicing Agreement).
A Mortgage Loan or any related REO Loan shall be deemed to be part
of the Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which Liquidation Proceeds, if any, are to be (or, if no
such Liquidation Proceeds are received, would have been) distributed to
Certificateholders. The Stated Principal Balance of any Mortgage Loan or
Serviced Whole Loan with respect to which the Master Servicer or Special
Servicer has made a Final Recovery Determination is zero.
"Subcontractor": Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the Master
Servicer or a Servicing Function Participant.
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Mortgage Loans for one or more Removed Mortgage
Loans, the amount, if any, by which the Repurchase Price or aggregate Repurchase
Price, as the case may be, for such Removed Mortgage Loan(s) exceeds the initial
Stated Principal Balance or aggregate initial Stated Principal Balance, as the
case may be, of such Replacement Mortgage Loan(s).
"Sub-Servicer": Any Person engaged by the Master Servicer or the
Special Servicer to perform Servicing with respect to one or more Mortgage Loans
or REO Loans.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of the Mortgage Loans as
provided in Section 3.01(c).
"Successful Sub-Servicing Bidder" As defined in Section 3.01(c).
"Tax Returns": The federal income tax returns on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holders of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed by
the Trustee on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions and the federal
income tax return to be filed by the Trustee on behalf of the Grantor Trust due
to its classification as a grantor trust under subpart E, Part I of subchapter J
of the Code, together with any and all other information, reports or returns
that may be required to be furnished to the Certificateholders or filed with the
IRS or any other governmental taxing authority under any applicable provisions
of federal law or Applicable State and Local Tax Law.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Third Party Appraiser": As defined in Section 3.18(e) of this
Agreement.
"Time of Sale": At or prior to the time when sales to purchasers of
the Certificates were first made, which was approximately 10:40 a.m. on May 26,
2006.
"Time of Sale Information": Collectively, the Depositor's free
writing prospectus dated as of May 17, 2006 and the Depositor's free writing
prospectus dated as of May 26, 2006.
"Total Loan Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Total Loan Report" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust" or "Trust Fund": The corpus of the trust created hereby and
to be administered hereunder, consisting of (in each case, to the extent of the
Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein): (i) such Mortgage Loans as from
time to time are subject to this Agreement, together with the Mortgage Files
relating thereto; (ii) all scheduled or unscheduled payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date; (iii) any REO
Property; (iv) all revenues received in respect of any REO Property; (v) any
Assignments of Leases, Rents and Profits and any security agreements; (vi) any
indemnities or guaranties given as additional security for any Mortgage Loans;
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts, and Reserve Accounts, (viii) Loss of Value Reserve Fund amounts
on deposit in the Collection Account attributable to the Mortgage Loans as
identified on the Trust Ledger, the Serviced Whole Loan Collection Accounts, the
Distribution Accounts, any Excess Liquidation Proceeds Account, the Interest
Reserve Account, any REO Account, including any reinvestment income, as
applicable; (ix) any environmental indemnity agreements relating to the
Mortgaged Properties; (x) all insurance policies with respect to the Mortgage
Loans and the Mortgaged Properties; (xi) the rights and remedies under the
Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower).
"Trust Ledger": Amounts deposited in the Collection Account
attributable to the Mortgage Loans, which are maintained pursuant to Section
3.05(a) and held on behalf of the Trustee on behalf of the Certificateholders.
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association,
in its capacity as Trustee, or its successor in interest, or any successor
Trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) the Trustee Fee Rate multiplied by (ii) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the immediately preceding Collection Period
(without giving effect to payments of principal on such Mortgage Loan on such
Due Date). The Trustee Fee shall be calculated in accordance with the provisions
of Section 1.02(a).
"Trustee Fee Rate": A rate equal to 0.0008% per annum.
"Underwriters": DBS, Banc of America Securities LLC, , X.X. Xxxxxx
Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx
Brothers Inc. or their respective successors in interest.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to Section 3.06(b) or Section
3.06(c), as applicable, but that has not been recovered from the related
Borrower or otherwise from collections on or the proceeds of the Mortgage Loan
or the applicable Serviced Whole Loan or Serviced REO Property in respect of
which the Advance was made.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds, Net Condemnation Proceeds and
Net Insurance Proceeds payable under such Mortgage Loan, the Repurchase Price of
any Mortgage Loan that is repurchased or purchased pursuant to Sections 2.03(d),
3.18 or 9.01, the Substitution Shortfall Amount with respect to any substitution
pursuant to Section 2.03(f) and any other payments under or with respect to such
Mortgage Loan not scheduled to be made, including Principal Prepayments received
by the Master Servicer (but excluding Prepayment Premiums or Yield Maintenance
Charges, if any) during such Collection Period.
"Updated Appraisal": An Appraisal of a Mortgaged Property or
Serviced REO Property, as the case may be, conducted subsequent to any appraisal
performed on or prior to the Cut-off Date and in accordance with Appraisal
Institute standards, the costs of which shall be paid as a Property Advance by
the Master Servicer or, on an emergency basis in accordance with Section
3.24(b), the Special Servicer, as applicable. Updated Appraisals shall be
conducted by an Independent MAI appraiser selected by the Special Servicer.
"Updated Valuation": With respect to a Mortgage Loan having a Stated
Principal Balance of $2,000,000 or higher, an Updated Appraisal. With respect to
a Mortgage Loan having a Stated Principal Balance of less than $2,000,000, an
updated Small Loan Appraisal Estimate.
"Upper-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(g),
which shall be entitled "Xxxxx Fargo Bank, N.A., as Trustee, in trust for
Holders of Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7
Commercial Mortgage Pass-Through Certificates, Upper-Tier Distribution Account"
and which must be an Eligible Account or a subaccount of an Eligible Account.
The Upper-Tier Distribution Account shall be an asset of the Upper-Tier REMIC.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations), or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust (or, to the extent provided in applicable Treasury Regulations,
certain trusts in existence on August 20, 1996 which have elected to be treated
as U.S. Persons).
"Valley Forge B Loan": As defined in the Preliminary Statement.
"Valley Forge B Loan Noteholder": The holder of the Note for the
Valley Forge B Loan.
"Valley Forge Companion Loan": As defined in the Preliminary
Statement.
"Valley Forge Intercreditor Agreement": That certain intercreditor
agreement among note holders, dated as of June 7, 2006 by and between General
Electric Capital Corporation and GEC Subordinate Holdings LLC, as from time to
time amended, supplemented or modified.
"Valley Forge Mortgage Loan": As defined in the Preliminary
Statement.
"Valley Forge Whole Loan": As defined in the Preliminary Statement.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificateholder or Class of
Certificateholders. At all times during the term of this Agreement, the
percentage of Voting Rights assigned to each Class shall be: (a) 98% to be
allocated among the Certificateholders of the respective Classes of Principal
Balance Certificates in proportion to the Certificate Balances of their
Certificates, (b) 2% to be allocated among the Certificateholders of the Class X
Certificates (allocated to the Class X Certificates on a pro rata basis based on
their respective outstanding Notional Amounts at the time of determination), and
(c) 0%, in the case of the Class S, Class R and Class LR Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests in such Class
evidenced by their respective Certificates.
"Watch List": For any Determination Date, a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Servicer Watch List" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Master Servicer or the Special Servicer, as applicable.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum for all Mortgage Loans of the
product of (i) the Net Mortgage Pass-Through Rate for each such Mortgage Loan as
of the immediately preceding Distribution Date and (ii) the Stated Principal
Balance of each such Mortgage Loan and the denominator of which is the sum of
the Stated Principal Balances of all such Mortgage Loans as of the immediately
preceding Distribution Date.
"Whole Loan": Each of the Desert Passage Whole Loan, the Buckeye
Portfolio Whole Loan and the Valley Forge Whole Loan, as the context may require
and as applicable.
"Withheld Amount": With respect to each Distribution Date occurring
in (i) January of each calendar year that is not a leap year and (ii) February
of each calendar year, unless in either case such Distribution Date is the final
Distribution Date, an amount equal to one day's interest at the Mortgage Rate as
of the Due Date (less the Servicing Fee Rate) on the respective Stated Principal
Balance of each Mortgage Loan that does not accrue interest on the basis of a
360-day year of 12 30-day months as of the Due Date in the month preceding the
month in which such Distribution Date occurs, to the extent that a Monthly
Payment or a P&I Advance is made in respect thereof. The Withheld Amount for
each applicable Distribution Date for each Mortgage Loan that does not accrue
interest on a 30/360 basis will be equal to 1/31 of the interest accrued in
respect of the immediately preceding Due Date, to the extent a Monthly Payment
or P&I Advance is made in respect thereof.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan or, with respect to Property Advances, any Serviced Whole Loan,
the amount of any Advance made with respect to such Mortgage Loan or Serviced
Whole Loan on or before the date such Mortgage Loan or Serviced Whole Loan
becomes (or, but for the making of three monthly payments under its modified
terms, would then constitute) a Corrected Mortgage Loan, together with (to the
extent accrued and unpaid) interest on such Advances, to the extent that (i)
such Advance is not reimbursed to the Person who made such Advance on or before
the date, if any, on which such Mortgage Loan or Serviced Whole Loan, as the
case may be, becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an obligation of the related Borrower to pay such amount under
the terms of the modified Loan Documents.
"Workout Fee": An amount equal to 1.0% of each collection of
interest and principal (including scheduled payments, prepayments (provided that
a repurchase or substitution by a Mortgage Loan Seller of a Mortgage Loan due to
a Material Defect or a Material Breach shall not be considered a prepayment for
purposes of this definition), Balloon Payments and payments at maturity, but
excluding Excess Interest) received on a Specially Serviced Loan that becomes a
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan,
pursuant to Section 3.12(c). For the avoidance of doubt, the Mortgage Loan
Seller will be required to pay a Workout Fee in connection with a repurchase or
substitution to the extent the Special Servicer was entitled to such a fee and
such fee was unpaid immediately prior to such repurchase or substitution or was
previously paid by the Trust and was not reimbursed by the related Borrower
immediately prior to such repurchase or substitution.
"Yield Maintenance Charge": With respect to any Mortgage Loan or
Serviced Whole Loan, the yield maintenance charge set forth in the related Loan
Documents; provided that, no amounts shall be considered Yield Maintenance
Charges until there has been a full recovery of all principal, interest and
other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans
and Serviced Companion Loans (other than the Actual/360 Mortgage Loans)
and of Advances in respect thereof provided for herein shall be made on
the basis of a 360-day year consisting of twelve 30-day months. All
calculations of interest with respect to the Actual/360 Mortgage Loans and
of Advances provided in respect thereof provided for herein shall be made
as set forth in such Mortgage Loans and, if applicable, Serviced Companion
Loans, with respect to the calculation of the related Mortgage Rate. The
Servicing Fee and the Trustee Fee for each Mortgage Loan or Serviced Whole
Loan, as applicable, shall accrue on the same basis as interest accrues on
such Mortgage Loan or Serviced Whole Loan, as applicable.
(b) Any Mortgage Loan or Serviced Whole Loan payment is deemed to be
received on the date such payment is actually received by the Master
Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan, Serviced Whole Loan are deemed to be
received on the date they are applied in accordance with Section 3.01(b)
to reduce the Stated Principal Balance of such Mortgage Loan or Serviced
Whole Loan on which interest accrues.
(c) Except as otherwise provided in the related Loan Documents or
Co-Lender Agreement, any amounts received in respect of a Mortgage Loan or
Serviced Whole Loan as to which a default has occurred and is continuing
in excess of Monthly Payments shall be applied to Default Interest and
other amounts due on such Mortgage Loan or Serviced Whole Loan prior to
the application to late fees.
(d) Allocations of payments between a Mortgage Loan and the related
Serviced Companion Loan(s) in a Whole Loan shall be made in accordance
with the related Co-Lender Agreement.
(e) If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as applicable, primarily to the administration of the Trust
Fund, any Trust REMIC or the Grantor Trust or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
Provisions or the actual payment of any REMIC tax or expense, or Grantor
Trust tax or expense or this Agreement states that any expense is solely
"an expense of the Trust Fund" or words of similar import, then such
expense shall not be allocated to, deducted or reimbursed from, or
otherwise charged against any Serviced Companion Loan Noteholder and such
Serviced Companion Loan Noteholder shall not suffer any adverse
consequences as a result of the payment of such expense.
(f) All amounts collected on any Mortgage Loan or Serviced Whole
Loan in the form of payments from the related Borrower, Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds shall be applied
to amounts due and owing under the related Note and Mortgage (including,
without limitation, for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Note and Mortgage
(and, with respect to any Serviced Whole Loan, the related Co-Lender
Agreement) and, in the absence of such express provisions, shall (after
provision for amounts to be applied to the payment of, or to be reimbursed
to the Master Servicer, the Special Servicer or the Trustee for the
reimbursement of any outstanding unreimbursed Advances on such Mortgage
Loan or Serviced Whole Loan and interest thereon) be applied: first, as a
recovery of principal then due and owing, in an amount equal to the
Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances, in each
case, that were paid from collections on the Mortgage Loans or the
Serviced Whole Loans, as applicable, and resulted in principal distributed
to the Certificateholders being reduced as a result of clause (ii) in the
definition of "Principal Distribution Amount"; second, as a recovery of
accrued and unpaid interest on such Mortgage Loan or Serviced Whole Loan,
as applicable, at the related Mortgage Rate in effect from time to time to
but not including the Due Date in the related Collection Period of
receipt; third, as a recovery of any remaining principal of such Mortgage
Loan or Serviced Whole Loan including by reason of acceleration of the
Mortgage Loan or the Serviced Whole Loan following a default thereunder
(or, if any Liquidation Proceeds are received upon the liquidation of such
Mortgage Loan or any Serviced Whole Loan, as a recovery of principal to
the extent of its entire remaining Stated Principal Balance) or if the
related Co-Lender Agreement, if any, so requires; fourth, in accordance
with the Servicing Standard, as a recovery of any Penalty Charges,
Prepayment Premiums and Yield Maintenance Charges; and fifth, as a
recovery of any other amounts then due and owing under such Mortgage Loan
or Serviced Whole Loan, as applicable. Notwithstanding the preceding, such
provisions shall not be deemed to affect the priority of distributions of
payments set forth in the related Co-Lender Agreement. To the extent that
such amounts are paid by a party other than a Borrower, unless otherwise
specified in this Agreement, such amounts shall be deemed to have been
paid in respect of a purchase of all or part of the Mortgaged Property (in
the case of Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds) and then paid by the Borrower under the related Mortgage Loan
and Serviced Whole Loan, as applicable, in accordance with the second
preceding sentence. Amounts collected on any REO Loan shall be deemed to
be applied as provided in Section 1.02(g).
(g) Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances with respect to an REO Loan, in each case, that were paid from
collections on the Mortgage Loans or the Serviced Whole Loans, as
applicable, and resulted in principal distributed to the
Certificateholders being reduced as a result of clause (ii) in the
definition of "Principal Distribution Amount" shall be deemed outstanding
until recovered. Collections in respect of each REO Loan (exclusive of the
amounts to be applied to the payment of, or to be reimbursed to the Master
Servicer or the Special Servicer for the payment of, the costs of
operating, managing, selling, leasing and maintaining the related Serviced
REO Property) shall (after provision for amounts to be applied to the
payment of, or to be reimbursed (1) to the Master Servicer or the Special
Servicer for the payment of, the costs of operating, managing and
maintaining the related Serviced REO Property and (2) to the Master
Servicer, the Special Servicer or the Trustee for the reimbursement of any
outstanding unreimbursed Advances on such REO Loan (and predecessor Loan)
and interest thereon) be treated: first, to principal, in an amount equal
to the Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances
with respect to such REO Loan, in each case, that were paid from
collections on the Mortgage Loans or the Serviced Whole Loans, as
applicable, and resulted in principal distributed to the
Certificateholders being reduced as a result of clause (ii) in the
definition of "Principal Distribution Amount"; second, as a recovery of
accrued and unpaid interest on such REO Loan at the related Mortgage Rate
in effect from time to time to, but not including, the Due Date in the
related Collection Period of receipt; third, as a recovery of any
remaining principal of such REO Loan to the extent of its entire Stated
Principal Balance; and fourth, in accordance with the Servicing Standard,
as a recovery of any other amounts due and owing in respect of such REO
Loan, including, without limitation, (i) Penalty Charges, (ii) Yield
Maintenance Charges and (iii) any other amounts, in that order. With
respect to the Serviced Whole Loans, the foregoing shall be subject to the
terms of the related Co-Lender Agreement.
(h) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related loan documents may provide
otherwise.
Section 1.03 Certain Constructions. For purposes of this Agreement,
references to the most or next most subordinate Class of Certificates
outstanding at any time shall mean the most or next most subordinate Class of
Certificates then outstanding as among the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates. For such purposes, the Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A Certificates collectively
shall be considered to be one Class. For purposes of this Agreement, each Class
of Certificates, other than the Class LR and Class R Certificates, shall be
deemed to be outstanding only to the extent its respective Certificate Balance
has not been reduced to zero. For purposes of this Agreement, the Class S, Class
R and Class LR Certificates shall be outstanding so long as the Trust Fund has
not been terminated pursuant to Section 9.01 or any other Class of Certificates
remains outstanding. For purposes of this Agreement, each of the Class X
Certificates shall be deemed to be outstanding until its respective Notional
Balance has been reduced to zero.
Notwithstanding anything to the contrary contained herein, for
purposes of this Agreement, each reference to any action by the Master Servicer
or Special Servicer that is subject to the consent or approval of the Directing
Certificateholder or the Controlling Class Representative shall in each case be
further subject to the determination by the Master Servicer or Special Servicer
that taking or refraining from taking the action as proposed by the Directing
Certificateholder or Controlling Class Representative, or not taking such action
as proposed by the Master Servicer or Special Servicer if the Directing
Certificateholder or Controlling Class Representative fails to grant its consent
or approval to any action proposed to be taken by the Master Servicer or Special
Servicer, in each case, is consistent with the Servicing Standard. In each case,
(a) if the response by the Directing Certificateholder or Controlling Class
Representative hereunder is inconsistent with the Servicing Standard the Master
Servicer or the Special Servicer shall take such action as is consistent with
the Servicing Standard, and (b) if the Master Servicer or Special Servicer
determines that immediate action is necessary to protect the interests of the
Certificateholder and any related Companion Loan Noteholder (as a collective
whole), it may take such action without waiting for a response from the
Directing Certificateholder or Controlling Class Representative.
Notwithstanding anything to the contrary contained herein, for
purposes of this Agreement, there are no Serviced Pari Passu Loans, and each
reference to a Whole Loan with a "Serviced Pari Passu Loan" shall be ignored as
inapplicable to this Agreement.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage
Loan Purchase Agreements. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a trust designated as "COMM 2006-C7
Mortgage Trust," appoint the Trustee as trustee of the Trust Fund and sell,
transfer, assign, set over and otherwise convey to the Trustee without recourse
(except to the extent herein provided) all the right, title and interest of the
Depositor in and to the Mortgage Loans, including all rights to payment in
respect thereof, except as set forth below, and any security interest thereunder
(whether in real or personal property and whether tangible or intangible) in
favor of the Depositor, and a security interest in all Reserve Accounts,
Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent
included or to be included in the Trust Fund for the benefit of the
Certificateholders and the Serviced Companion Loan Noteholders. Such transfer
and assignment includes all interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date and in a case of a Mortgage Loan included
in a Whole Loan, is subject to the related Co-Lender Agreement. Such transfer
and assignment of the Non-Serviced Mortgage Loan and the right to service the
Non-Serviced Mortgage Loan is further subject to the terms and conditions of the
Other Pooling and Servicing Agreement and the related Co-Lender Agreement. In
connection with such transfer and assignment, the Depositor shall make a cash
deposit to the Collection Account in an amount equal to the Interest Deposit
Amount. The Depositor, concurrently with the execution and delivery hereof, does
also hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent provided herein) all the right, title and
interest of the Depositor in, to and under the Mortgage Loan Purchase Agreements
as provided therein (excluding the representations, warranties and covenants in
favor of the Depositor set forth in clauses (viii) and (ix) of Section 4(b) of
each Mortgage Loan Purchase Agreement and the Depositor's rights and remedies
with respect to a breach thereof, and excluding the Depositor's rights and
remedies under the Indemnification Agreements) to the extent related to any
Mortgage Loan. The Depositor shall cause the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts relating to the Mortgage Loans to be transferred
to and held in the name of the Master Servicer on behalf of the Trustee as
successor to the Mortgage Loan Sellers.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Custodian, with copies to the Master
Servicer and the Special Servicer, the following documents or instruments with
respect to each Mortgage Loan, and each Serviced Companion Loan (which except
for the Note referred to in clause (i) below, relate to the Whole Loan) so
assigned (provided, however, the documents specified in items (xix) and (xx)
shall be delivered only to the Master Servicer):
(i) (A) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Xxxxx Fargo Bank, N.A., as Trustee for the registered
holders of COMM 2006-C7 Commercial Mortgage Pass-Through Certificates,
without recourse"; and (B) in the case of each Serviced Companion Loan, a
copy of the executed Note for such Serviced Companion Loan;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan or
Serviced Whole Loan to the most recent assignee of record thereof prior to
the Trustee, if any, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the Originator, either in blank or in favor of the
Trustee (in such capacity); provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of Mortgage in
favor of the Trustee will be required to be recorded or delivered and
instead, the Mortgage Loan Seller shall take all actions as are necessary
to cause the Trustee, on behalf of the Certificateholders, to be shown as
(and the Trustee shall take all necessary actions to confirm that it is
shown as) the owner of the related Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS;
(iv) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan or Serviced Whole Loan to the most recent assignee of record thereof
prior to the Trustee, if any; and (B) an original assignment of any
related security agreement (if such item is a document separate from the
related Mortgage) executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the Originator, either in blank or in
favor of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in clause
(iii) above; provided, if the related security agreement has been recorded
in the name of MERS or its designee, no assignment of security agreement
in favor of the Trustee will be required to be recorded or delivered and
instead, the Mortgage Loan Seller shall take all actions as are necessary
to cause the Trustee, on behalf of the Certificateholders, to be shown as
(and the Trustee shall take all necessary actions to confirm that it is
shown as) the owner of the related assignment of security agreement on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of security agreements maintained by MERS;
(v) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the Originator
of the Mortgage Loan (and each assignee of record prior to the Trustee) in
and to the personalty of the Borrower at the Mortgaged Property (in each
case with evidence of filing or recording thereon) and which were in the
possession of the related Mortgage Loan Seller (or its agent) at the time
the Mortgage Files were delivered to the Custodian, together with original
UCC-2 or UCC-3 assignments of financing statements showing a complete
chain of assignment from the secured party named in such UCC-1 financing
statement to the most recent assignee of record thereof prior to the
Trustee, if any, and (B) if any such security interest is perfected and
the earlier UCC financing statements and continuation statements were in
the possession of the related Mortgage Loan Seller, an assignment of UCC
financing statement by the most recent assignee of record prior to the
Trustee or, if none, by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the Trustee; provided,
if the related UCC financing statement has been recorded in the name of
MERS or its designee, no UCC financing statement in favor of the Trustee
will be required to be recorded or delivered and instead, the Mortgage
Loan Seller shall take all actions as are necessary to cause the Trustee,
on behalf of the Certificateholders, to be shown as (and the Trustee shall
take all necessary actions to confirm that it is shown as) the owner of
the related UCC Financing Statement on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of UCC financing
statements maintained by MERS;
(vi) the original or a copy of the Loan Agreement relating to such
Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued with
or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property, or a "marked up"
commitment to insure marked as binding and countersigned by the related
insurer or its authorized agent (which may be a pro forma or specimen
title insurance policy which has been accepted or approved as binding in
writing by the related title insurance company), or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from the
Originator of the Mortgage Loan to the most recent assignee of record
thereof prior to the Trustee, if any, in each case with evidence of
recording thereon; and (B) an original assignment of any related
Assignment of Leases, Rents and Profits (a "Reassignment of Assignment of
Leases, Rents and Profits") (if such item is a document separate from the
Mortgage), in recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the Originator, either
in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above; provided, if the related Assignment of
Leases, Rents and Profits has been recorded in the name of MERS or its
designee, no Assignment of Leases, Rents and Profits in favor of the
Trustee will be required to be recorded or delivered and instead, the
Mortgage Loan Seller shall take all actions as are necessary to cause the
Trustee, on behalf of the Certificateholders, to be shown as (and the
Trustee shall take all necessary actions to confirm that it is shown as)
the owner of the related Assignment of Leases, Rents and Profits on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of assignment of leases, rents and profits maintained
by MERS;
(ix) the original of any environmental indemnity agreements and
copies of any environmental insurance policies pertaining to the Mortgaged
Properties required in connection with origination of the Mortgage Loans,
if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease and any related lessor
estoppel or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts
and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if
any, submitted for filing with respect to the related Mortgage Loan
Seller's security interest in the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts and all funds contained therein (and UCC-3
assignments of financing statements assigning such UCC-1 financing
statements to the Trustee on behalf of the Certificateholders and with
respect to any Serviced Whole Loan on behalf of Certificateholders and the
related Serviced Companion Loan Noteholders);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if appropriate, in those instances where the terms or provisions of the
Mortgage, the Note or any related security document have been modified or
the Mortgage Loan or Serviced Whole Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan or Serviced Whole Loan together with,
as applicable, (A) the original or copies of any intervening assignments
of such guaranty showing a complete chain of assignment from the
Originator of the Mortgage Loan to the most recent assignee thereof prior
to the Trustee and (B) an original assignment of such guaranty executed by
the most recent assignee thereof prior to the Trustee or, if none, by the
Originator;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related Borrower if
the Mortgage, Note or other document or instrument referred to above was
signed on behalf of the Borrower pursuant to such power of attorney;
(xvii) with respect to each Whole Loan, a copy of the related
Co-Lender Agreement and a copy of the Other Pooling and Servicing
Agreement, if applicable;
(xviii) with respect to hospitality properties, a copy of the
franchise agreement, if any, an original or copy of the comfort letter, if
any, and any transfer documents with respect to any such comfort letter;
(xix) the original (or copy, if the original is held by the Master
Servicer pursuant to Section 2.01(c)) of any letter of credit held by the
lender as beneficiary or assigned as security for such Mortgage Loan; and
(xx) the appropriate assignment or amendment documentation related
to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Master
Servicer pursuant to Section 2.01(c)) which entitles the Master Servicer
on behalf of the Trust to draw thereon.
With respect to the Serviced Whole Loans, except for the Note
referred to in clause (i) of the preceding paragraph, only a single original set
of the Loan Documents specified above is required to be delivered. With respect
to the Non-Serviced Mortgage Loan, the preceding document delivery requirements
will be met by the delivery by the applicable Mortgage Loan Seller of copies of
the documents specified above (other than the Note and intervening endorsements
evidencing the Non-Serviced Mortgage Loan, with respect to which the originals
shall be required), including a copy of the Mortgage securing the applicable
Non-Serviced Mortgage Loan. With respect to any group of Cross-Collateralized
Mortgage Loans, if there exists only one original or certified copy of any
document referred to in clauses (i) through (xx) of Section 2.01(a) covering all
of the Mortgage Loans in such group of Cross-Collateralized Mortgage Loans, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting a part of such group of Cross-Collateralized
Mortgage Loans shall be deemed the inclusion of such original or certified copy
in the Mortgage File for each such Mortgage Loan.
On or prior to the Closing Date, each Mortgage Loan Seller will
retain a third party vendor reasonably satisfactory to the Controlling Class
Representative (which may be the Custodian) to complete the assignment and
recordation of the related Loan Documents in the name of the Trustee on behalf
of the Certificateholders and with respect to a Serviced Whole Loan, the related
Serviced Companion Loan Noteholders. On or promptly following the Closing Date,
each Mortgage Loan Seller will cause such third party vendor, to the extent
possession of recorded copies of each Mortgage and the documents described in
Sections 2.01(a)(iii), (v), (viii), (xiii) and (xiv) have been delivered to it,
at the expense of the Mortgage Loan Seller, (1) to prepare and record (a) each
Assignment of Mortgage referred to in Section 2.01(a)(iii) which has not yet
been submitted for recording and (b) each Reassignment of Assignment of Leases,
Rents and Profits referred to in Section 2.01(a)(viii)(B) (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) to prepare and file each UCC assignment of financing
statement referred to in Section 2.01(a)(v) or (xiii) which has not yet been
submitted for filing or recording. Each Mortgage Loan Seller will direct the
related third party vendor to promptly prepare and submit (and in no event later
than 30 Business Days following the receipt of the related documents in the case
of clause 1(a) above and 60 days following the receipt of the applicable
documents in the case of clauses 1(b) and 2 above) for recording or filing, as
the case may be, in the appropriate public recording or filing office, each such
document. In the event that any such document is lost or returned unrecorded
because of a defect therein, the related Mortgage Loan Seller, at the expense of
such Mortgage Loan Seller (as set forth in the related Mortgage Loan Purchase
Agreement), will promptly prepare a substitute document for signature by the
Depositor or itself, as applicable, and thereafter the related Mortgage Loan
Seller will cause each such document to be duly recorded or filed. Each Mortgage
Loan Seller will, promptly upon receipt of the original recorded or filed copy
(and in no event later than five Business Days following such receipt) deliver
such original to the Custodian (in the case of each UCC financing statement or
UCC assignment of financing statement, with evidence of filing or recording
thereon). Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Depositor shall be deemed to have been satisfied upon delivery
to the Custodian of a copy of such Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable,
certified by the public recording office to be a true and complete copy of the
recorded original thereof. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee or to file any UCC-3
assignment of financing statement in those jurisdictions where, in the written
opinion of local counsel (which opinion shall not be an expense of the Trust
Fund or, any Serviced Companion Loan Noteholder) acceptable to the Depositor and
the Trustee, such recordation and/or filing is not required to protect the
Trustee's interest in the related Mortgage Loans against sale, further
assignment, satisfaction or discharge by the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, any sub-servicer or the Depositor.
If a Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original or a copy of the related lender's title
insurance policy referred to in Section 2.01(a)(vii) solely because such policy
has not yet been issued, the delivery requirements of this Section 2.01 will be
deemed to be satisfied as to such missing item, and such missing item will be
deemed to have been included in the related Mortgage File by delivery of a
binder marked as binding and countersigned by the title insurer or its
authorized agent (which may be a pro forma or specimen title insurance policy
which has been accepted or approved as binding in writing by the related title
insurance company) or an acknowledged closing instruction or escrow letter.
Copies of recorded or filed Assignments of Mortgage, Reassignments of Assignment
of Leases, Rents and Profits and UCC assignments of financing statements shall
be held by the Custodian.
Subject to the third preceding paragraph, all original documents
relating to the Mortgage Loans which are not delivered to the Custodian are and
shall be held by the Depositor, the Trustee or the Master Servicer (or a
sub-servicer on its behalf), as the case may be, in trust for the benefit of the
Certificateholders and, insofar as they also relate to the Serviced Companion
Loans, on behalf of and for the benefit of the related Serviced Companion Loan
Noteholders. In the event that any such original document, or in the case of a
Serviced Companion Loan, the original Note, is required pursuant to the terms of
this Section to be a part of a Mortgage File in order to effectuate the purposes
of this Agreement, such document shall be delivered promptly to the Custodian.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents
and warrants that it has directed, each of the Mortgage Loan Sellers
pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to
and deposit with or cause to be delivered to and deposited with, the
Custodian, on or before the Closing Date, the Note, for each Mortgage Loan
so assigned or a copy of the Note evidencing each related Serviced
Companion Loan, the original or a copy of the related Mortgage, the
original or a copy of the title policy for each Mortgage Loan, a copy of
the related ground lease, if applicable, for each Mortgage Loan and an
original (or copy, if the original is held by the Master Servicer pursuant
to Section 2.01(c)) of any letters of credit held by the lender as
beneficiary or assigned as security for the Mortgage Loan, and, within 30
days following the Closing Date, the remaining applicable documents
referred to in Section 2.01(a) for each such Mortgage Loan or Serviced
Companion Loan, in each case with copies to the Master Servicer. If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original Note, such Mortgage Loan Seller
shall deliver a copy or duplicate original of such Note, together with an
affidavit certifying that the original thereof has been lost or destroyed
and an indemnification in favor of the Trustee.
If the applicable Mortgage Loan Seller or the Depositor cannot
deliver, or cause to be delivered, as to any Mortgage Loan (except for any
Mortgage which has been recorded in the name of MERS or its designee), the
original or a copy of any of the documents and/or instruments referred to in
Section 2.01(a)(ii), Section 2.01(a)(v), Section 2.01(a)(viii)(A), Section
2.01(a)(xiv) and Section 2.01(a)(xvi) and the UCC financing statements and UCC
assignments of financing statements referred to in Section 2.01(a)(xiii), with
evidence of recording or filing thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, or because such original recorded or filed
document has been lost or returned from the recording or filing office and
subsequently lost, as the case may be, the delivery requirements of Section 2.01
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File,
provided that a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the applicable public recording or
filing office, the applicable title insurance company or the related Mortgage
Loan Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Custodian
within 45 days after the Closing Date, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or filing,
as the case may be, thereon, is delivered to the Custodian within 180 days after
the Closing Date (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably withheld so long
as the related Mortgage Loan Seller has provided the Trustee with evidence of
such recording or filing, as the case may be, or has certified to the Trustee as
to the occurrence of such recording or filing, as the case may be, and is, as
certified to the Trustee no less often than quarterly, in good faith attempting
to obtain from the appropriate county recorder's or filing office such original
or copy; provided that in no event shall such extension exceed 24 months after
the Closing Date).
(c) Notwithstanding anything herein to the contrary, with respect to
the documents referred to in clause (xix) and clause (xx) of Section
2.01(a), the Master Servicer shall hold the original of each such document
in trust on behalf of the Trust in order to draw on such letter of credit
on behalf of the Trust and the applicable Mortgage Loan Seller shall be
deemed to have satisfied the delivery requirements of the related Mortgage
Loan Purchase Agreement and this Section 2.01 by delivering the original
of each such document to the Master Servicer, who shall forward a copy of
the applicable document to the Trustee. The applicable Mortgage Loan
Seller shall pay any costs of assignment or amendment of such letter of
credit (which amendment shall change the beneficiary of the letter of
credit to the Trust in care of the Master Servicer) required in order for
the Master Servicer to draw on such letter of credit on behalf of the
Trust. In the event that the documents specified in clause (xx) of Section
2.01(a) are missing because the related assignment or amendment documents
have not been completed, the applicable Mortgage Loan Seller shall take
all necessary steps to enable the Master Servicer to draw on the related
letter of credit on behalf of the Trust including, if necessary, drawing
on the letter of credit in its own name pursuant to written instructions
from the Master Servicer and immediately remitting such funds (or causing
such funds to be remitted) to the Master Servicer.
Section 2.02 Acceptance by Custodian and the Trustee. By its
execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans in good faith without notice of adverse
claims and declares that the Custodian holds and will hold such documents and
all others delivered to it constituting the Mortgage File (to the extent the
documents constituting the Mortgage File are actually delivered to the
Custodian) for any Mortgage Loan assigned to the Trustee hereunder in trust,
upon the conditions herein set forth, for the use and benefit of all present and
future Certificateholders and Serviced Companion Loan Noteholders.
The Trustee hereby certifies to each of the Controlling Class
Representative, the Depositor, the Master Servicer, the Special Servicer and
each Mortgage Loan Seller that except as identified in the Trustee closing date
certification, which shall be delivered no later than two Business Days after
the Closing Date, and which is attached hereto as Exhibit S-1, each of the the
Mortgage Note, a copy of the Mortgage, a copy of any related ground leases, the
originals of any related letters of credit, the lender's title policy (original
or copy or marked-up title commitment marked as binding and countersigned by the
title company or its authorized agent either on its face or by an acknowledged
closing instruction or escrow letter) and with respect to hospitality
properties, a copy of the franchise agreement, an original copy of the comfort
letter and any transfer documents with respect to such comfort letter, for each
Mortgage Loan so assigned, with copies to the Servicer are in its possession;
provided that the Trustee's certification with respect to the Non-Serviced
Mortgage Loan shall only include documents specified in clause (i) of the
definition of "Mortgage File". With respect to the schedule of exceptions
described in the preceding sentence, within thirty (30) calendar days of the
Closing Date, the related Mortgage Loan Seller shall cure any such exception
listed therein. If such exception is not so cured, the related Mortgage Loan
Seller shall be obligated to repurchase such Mortgage Loan in the manner set
forth in Section 2.03(d).
The Custodian agrees to review each Mortgage File within 60 days
after the later of the Closing Date or actual receipt (but no later than 120
days after the Closing Date with respect to any Mortgage File received within
100 days after the Closing Date), and will certify in, the form attached hereto
as Exhibit S-2, that all documents (other than documents referred to in clause
(xix) and clause (xx) of Section 2.01(a) which shall be delivered to the Master
Servicer and the documents referred to in clauses (iii), (v)(B) and (viii)(B) of
Section 2.01(a) and the assignments of financing statements referred to in
clause (xiii) of Section 2.01(a) which shall be delivered for filing or
recording by the Mortgage Loan Sellers as provided herein) referred to in
Section 2.01(a) above (in the case of the documents referred to in Section
2.01(a)(iv), (v), (vi), (vii) (in the case of any endorsement thereto), (viii),
(ix) and (x) through (xx), as identified to it in writing by the related
Mortgage Loan Seller) and any original recorded documents included in the
delivery of a Mortgage File have been received, have been executed, appear to be
what they purport to be, purport to be recorded or filed (as applicable) and
have not been torn in any materially adverse manner or mutilated or otherwise
defaced, and that such documents relate to the Mortgage Loans identified in the
Mortgage Loan Schedule. In so doing, the Custodian may rely on the purported due
execution and genuineness of any such document and on the purported genuineness
of any signature thereon.
If at the conclusion of such review any document or documents
constituting a part of a Mortgage File have not been executed or received, have
not been recorded or filed (if required), are unrelated to the Mortgage Loans
identified in the Mortgage Loan Schedule, appear not to be what they purport to
be or have been torn in any materially adverse manner or mutilated or otherwise
defaced, the Custodian shall promptly so notify (in the form attached hereto as
Exhibit R) the Trustee, the Controlling Class Representative, the Depositor, the
Master Servicer, the Special Servicer and the related Mortgage Loan Seller by
providing a written report, setting forth for each affected Mortgage Loan, with
particularity, the nature of the defective or missing document. The Depositor
shall or shall cause the related Mortgage Loan Seller to deliver an executed,
recorded or undamaged document, as applicable, or, if the failure to deliver
such document in such form has a material adverse effect on the security
provided by the related Mortgaged Property or the ability of the Trustee to
timely enforce any rights or remedies in respect of such Mortgaged Property, the
Depositor shall cause the related Mortgage Loan Seller to cure, repurchase or
substitute for the related Mortgage Loan in the manner provided in Section 2.03.
None of the Master Servicer, the Special Servicer or the Trustee shall be
responsible for any loss, cost, damage or expense to the Trust Fund resulting
from any failure to receive any document constituting a portion of a Mortgage
File noted on such a report or for any failure by the Depositor to use its best
efforts to deliver any such document.
Contemporaneously with its execution of this Agreement, the
Depositor shall cause each Mortgage Loan Seller to deliver, a power of attorney
to the Master Servicer and Special Servicer, at the direction of the Controlling
Class Representative or its assignees, to take such other action as is necessary
to effect the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan which have not been delivered,
assigned or recorded at the time required for enforcement by the Trust Fund.
Pursuant to the related Mortgage Loan Purchase Agreement, each of the Mortgage
Loan Sellers will be required to effect (at the expense of the applicable
Mortgage Loan Seller) the assignment and recordation of its respective Loan
Documents until the assignment and recordation of all such Loan Documents has
been completed.
In reviewing any Mortgage File pursuant to the second preceding
paragraph or Section 2.01, the Master Servicer shall have no responsibility to
cause the Custodian or Trustee to, and the Custodian or Trustee will have no
responsibility to, examine any opinions or determine whether any document is
legal, valid, binding or enforceable, whether the text of any assignment or
endorsement is in proper or recordable form (except, if applicable, to determine
if the Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
whether a blanket assignment is permitted in any applicable jurisdiction, or
whether any Person executing any document or rendering any opinion is authorized
to do so or whether any signature thereon is genuine.
The Custodian shall hold that portion of the Trust Fund delivered to
the Custodian consisting of "instruments" (as such term is defined in Section
9-102 of the Uniform Commercial Code as in effect in Minnesota on the date
hereof) in Minnesota and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Minnesota, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Minnesota) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans. (a) The Depositor
hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) The Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(iii) This Agreement has been duly and validly executed and
delivered by the Depositor and assuming the due authorization, execution
and delivery of this Agreement by each other party hereto, this Agreement
and all of the obligations of the Depositor hereunder are the legal, valid
and binding obligations of the Depositor, enforceable in accordance with
the terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provision of its certificate of incorporation or bylaws,
or any law or regulation to which the Depositor is subject, or conflict
with, result in a breach of or constitute a default under (or an event
which with notice or lapse of time or both would constitute a default
under) any of the terms, conditions or provisions of any agreement or
instrument to which the Depositor is a party or by which it is bound, or
any law, order or decree applicable to the Depositor, or result in the
creation or imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the ability of the
Depositor to carry out the transactions contemplated by this Agreement;
(v) The certificate of incorporation of the Depositor provides that
the Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal with the following: (I) "fully-modified pass-through"
certificates ("GNMA Certificates") issued and guaranteed as to
timely payment of principal and interest by the Government National
Mortgage Association ("GNMA"), a wholly-owned corporate
instrumentality of the United States within the Department of
Housing and Urban Development organized and existing under Title III
of the National Housing Act of 1934; (II) Guaranteed Mortgage
Pass-Through Certificates ("FNMA Certificates") issued and
guaranteed as to timely payment of principal and interest by FNMA;
(III) Mortgage Participation Certificates ("FHLMC Certificates")
issued and guaranteed as to timely payment of interest and ultimate
or full payment of principal by FHLMC; (IV) any other participation
certificates, pass-through certificates or other obligations or
interests backed directly or indirectly by mortgage loans and issued
or guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA
Certificates, FNMA Certificates and FHLMC Certificates, the "Agency
Securities"); (V) mortgage-backed securities, which securities need
not be issued or guaranteed, in whole or in part, by any
governmental entity, issued by one or more private entities
(hereinafter referred to as "Private Securities"); (VI) mortgage
loans secured by first, second or more junior liens on one-to-four
family residential properties, multifamily properties that are
either rental apartment buildings or projects containing five or
more residential units or commercial properties, regardless of
whether insured or guaranteed in whole or in part by any
governmental entity, or participation interests or stripped
interests in such mortgage loans ("Mortgage Loans"); (VII)
conditional sales contracts and installment sales or loan agreements
or participation interests therein secured by manufactured housing
("Contract"); and (VIII) receivables of third-parties or other
financial assets of third-parties, either fixed or revolving, that
by their terms convert into cash within a finite time period ("Other
Assets");
(B) to loan its funds to any person under loan agreements and
other arrangements which are secured by Agency Securities, Private
Securities, Mortgage Loans, Contracts and/or Other Assets;
(C) to authorize, issue, sell and deliver bonds or other
evidences of indebtedness that are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other Assets;
(D) to authorize, issue, sell and deliver certificates
evidencing beneficial ownership interests in pools of Agency
Securities, Private Securities, Mortgage Loans, Contracts and/or
Other Assets; and
(E) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware
that are incident to the foregoing and necessary or convenient to
accomplish the foregoing.
Capitalized terms defined in this clause (v) shall apply only to such clause;
(vi) There is no action, suit, proceeding or investigation pending
or threatened against the Depositor in any court or by or before any other
governmental agency or instrumentality which would materially and
adversely affect the ability of the Depositor to carry out its obligations
under this Agreement;
(vii) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or body, is required for the execution, delivery and performance by the
Depositor of or compliance by the Depositor with this Agreement, or if
required, such approval has been obtained prior to the Cut-off Date; and
(viii) The Trustee, if not the owner of the related Mortgage Loan,
will have a valid and perfected security interest of first priority in
each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to
each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee,
the Note and the Mortgage were not subject to an assignment or pledge, and
the Depositor had good title to, and was the sole owner of, the Mortgage
Loan and had full right to transfer and sell the Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest, provided, that, in the case of the
Non-Serviced Mortgage Loan, the related Mortgage will not be executed and
delivered in favor of the Trustee, but rather has been assigned to the
Other Trustee under the Other Pooling and Servicing Agreement;
(ii) The Depositor is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal,
valid and binding assignment of such Mortgage from the Depositor to the
Trustee, and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee; and
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done anything which
would impair the coverage of such lender's title insurance policy.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Custodian until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the
Serviced Companion Loan Noteholders, the Master Servicer and the Special
Servicer.
(d) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been delivered within the time periods
provided for in Section 2.01, has not been properly executed, is missing,
does not appear to be regular on its face or contains information that does
not conform in any material respect with the corresponding information set
forth in the Mortgage Loan Schedule (each, a "Defect"), or discovers or
receives notice of a breach of any representation or warranty of any Mortgage
Loan Seller made pursuant to the related Mortgage Loan Purchase Agreement
with respect to any Mortgage Loan (a "Breach"), such party shall give prompt
written notice thereof to each of the Rating Agencies, the related Mortgage
Loan Seller, the other parties hereto and the Controlling Class
Representative. If any such Defect or Breach materially and adversely affects
the value of any Mortgage Loan, the value of the related Mortgaged Property
or the interests of the Trustee or any Certificateholders in any Mortgage
Loan hereunder, then such Defect shall constitute a "Material Defect" or such
Breach shall constitute a "Material Breach," as the case may be; provided,
however, that if any of the documents specified in clauses (i), (ii), (vii),
(xi), and (xix) of the definition of "Mortgage File" are not delivered as
required in Section 2.01(a), it shall be deemed a Material Defect. Promptly
upon receiving written notice of any such Material Defect or Material Breach
with respect to a Mortgage Loan (including through a written notice given by
any party hereto, as provided above), the applicable Mortgage Loan Seller
shall, not later than 90 days from the applicable Mortgage Loan Seller's
receipt of notice from the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Custodian of such Material Defect or Material
Breach, as the case may be (or, in the case of a Material Defect or Material
Breach relating to a Mortgage Loan not being a "qualified mortgage" within
the meaning of the REMIC Provisions, not later than 90 days after the
Mortgage Loan Seller or any party hereto discovering such Material Defect or
Material Breach) (any such 90-day period, the "Initial Resolution Period"),
(i) cure the same in all material respects, (ii) repurchase the affected
Mortgage Loan at the applicable Repurchase Price or in conformity with the
applicable Mortgage Loan Purchase Agreement or (iii) substitute a Qualifying
Substitute Mortgage Loan for such affected Mortgage Loan (provided that, in
no event shall such substitution occur later than the second anniversary of
the Closing Date and pay to the Master Servicer for deposit into the
Collection Account (or, with respect to any Serviced Whole Loan, the
applicable Serviced Whole Loan Collection Account) any Substitution Shortfall
Amount in connection therewith; provided, however, that with respect to any
Material Defect arising from a missing document as to which the Trustee
closing date certification delivered pursuant to the first sentence of the
second paragraph of Section 2.02 stated the Trustee was not in possession of
such document on the Closing Date the related Mortgage Loan Seller shall have
30 days to cure such Material Defect; provided, further, that with respect to
any Material Defect arising from a missing document as to which the Trustee
inadvertently certified its possession of such document (x) as of the Closing
Date, in the form of Exhibit S-1 or (y) no later than 45 days following the
Closing Date, in the form of Exhibit S-2, the related Mortgage Loan Seller
shall have 30 days to cure the Material Defect relating to the missing
document; provided, further, that if (i) such Material Defect (other than the
one relating to the immediately preceding proviso) or Material Breach is
capable of being cured but not within the Initial Resolution Period, (ii)
such Material Defect or Material Breach is not related to any Mortgage Loan's
not being a "qualified mortgage" within the meaning of the REMIC Provisions
and (iii) the Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Material Defect or Material Breach within the Initial
Resolution Period, then the Mortgage Loan Seller shall have an additional
period equal to the applicable Resolution Extension Period to complete such
cure or, failing such cure, to repurchase the Mortgage Loan or substitute a
Qualifying Substitute Mortgage Loan. The applicable Mortgage Loan Seller
shall have an additional 90 days (without duplication of the additional
90-day period set forth in the last sentence of the definition of Resolution
Extension Period) to cure such Material Defect or Material Beach; provided
that, the Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Material Defect or Material Breach and such failure to
cure is solely the result of a delay in the return of documents from the
local filing or recording authorities. Notwithstanding the foregoing, if a
Mortgage Loan is not secured by a hotel, restaurant (operated by a Borrower),
healthcare facility, nursing home, assisted living facility, self-storage
facility, theatre, mobile home park or fitness center (operated by a
Borrower) property, then the failure to deliver to the Trustee copies of the
UCC financing statements with respect to such Mortgage Loan shall not be a
Material Defect.
If one or more (but not all) of the Mortgage Loans constituting a
cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the applicable Mortgage Loan Seller as contemplated by this
Section 2.03(d), then, prior to the subject repurchase or substitution, the
applicable Mortgage Loan Seller or its designee shall use its reasonable
efforts, subject to the terms of the related Mortgage Loan(s), to prepare and,
to the extent necessary and appropriate, have executed by the related Borrower
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loan(s) in such
cross-collateralized group of Mortgage Loans that are to be repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented in its sole discretion and the Trustee has received from the
applicable Mortgage Loan Seller (i) an Opinion of Counsel to the effect that
such termination would not cause an Adverse REMIC Event to occur and (ii)
written confirmation from each Rating Agency that the then current rating
assigned to any of the Certificates that are currently being rated by such
Rating Agency will not be qualified, downgraded or withdrawn by reason of such
termination; provided, further, that the Mortgage Loan Seller, in the case of
the related Mortgage Loans, may, at its option and within the 90-day cure period
(and any applicable extension thereof) described above, purchase or substitute
for the entire subject cross-collateralized group of Mortgage Loans in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person acting on its behalf pursuant to this
paragraph shall be included in the calculation of the Repurchase Price for the
Mortgage Loan(s) to be repurchased or substituted. If the
cross-collateralization of any cross-collateralized group of Mortgage Loans
cannot be terminated as contemplated by this paragraph, then the Seller shall
repurchase or substitute the entire subject cross-collateralized group of
Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the applicable
Mortgage Loan Seller will not be obligated to repurchase the Mortgage Loan or
cross-collateralized group of Mortgage Loans if the affected Mortgaged Property
may be released pursuant to the terms of any partial release provisions in the
related Loan Documents (and such Mortgaged Property is, in fact, released) and
the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the Loan Documents and the Mortgage Loan Seller provides an Opinion of
Counsel to the effect that such release would not cause an Adverse REMIC Event
to occur.
In the event that a Mortgage Loan Seller, in connection with a
Material Defect or a Material Breach (or an allegation of a Material Defect or a
Material Breach) pertaining to a Mortgage Loan, makes a cash payment pursuant to
an agreement or a settlement between the applicable Mortgage Loan Seller and the
Special Servicer, on behalf of the Trust (each such payment, a "Loss of Value
Payment") with respect to such Mortgage Loan, the amount of such Loss of Value
Payment shall be deposited into the Loss of Value Reserve Fund to be applied in
accordance with Section 3.06(f). If such Loss of Value Payment is made, the Loss
of Value Payment shall serve as the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Material
Breach or Material Defect in lieu of any obligation of the Mortgage Loan Seller
to otherwise cure such Material Breach or Material Defect or repurchase or
substitute for the affected Mortgage Loan based on such Material Breach or
Material Defect under any circumstances. This paragraph is intended to apply
only to a mutual agreement or settlement between the applicable Mortgage Loan
Seller and the Trust, provided, however, that prior to any such agreement or
settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or
the Trustee from exercising any of its rights related to a Material Defect or a
Material Breach in the manner and timing set forth in the related Mortgage Loan
Purchase Agreement or this Section 2.03 (excluding this paragraph) (including
any right to cure, repurchase or substitute for such Mortgage Loan), and
provided, further, that such Loss of Value Payment shall not be greater than the
Repurchase Price of the affected Mortgage Loan.
(e) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.03, (A) the Trustee, the Master
Servicer (with respect to any such Mortgage Loan other than a Specially
Serviced Loan) and the Special Servicer (with respect to any such Mortgage
Loan that is a Specially Serviced Loan) shall each tender to the applicable
Mortgage Loan Seller, upon delivery (i) to each of the Master Servicer or the
Special Servicer, as applicable, of a trust receipt and (ii) to the Trustee
by the Master Servicer or the Special Servicer, as applicable, of a Request
for Release and an acknowledgement by the Master Servicer or Special
Servicer, as applicable, of its receipt of the Repurchase Price or the
Substitution Shortfall Amount from the applicable Mortgage Loan Seller, (1)
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (2) each document that constitutes a part
of the Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed or assigned without recourse in the form of endorsement or
assignment provided to the Trustee by the applicable Mortgage Loan Seller, as
the case may be, to the applicable Mortgage Loan Seller as shall be necessary
to vest in the applicable Mortgage Loan Seller the legal and beneficial
ownership of such Mortgage Loan to the extent such ownership was transferred
to the Trustee (provided, however, that the Master Servicer or Special
Servicer, as applicable, shall use reasonable efforts to cooperate in
furnishing necessary information to the extent in its possession to the
Mortgage Loan Seller in connection with such Mortgage Loan Seller's
preparation of such endorsement or assignment) and (B) the Trustee shall
release, or cause a release of, any escrow payments and reserve funds held by
the Trustee, or on the Trustee's behalf, in respect of such Mortgage Loan to
the applicable Mortgage Loan Seller.
(f) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee, enforce the obligations of the applicable
Mortgage Loan Seller under Section 6 of the applicable Mortgage Loan Purchase
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in accordance with the Servicing
Standard. The Trustee, the Master Servicer and the Special Servicer, as the
case may be, shall be reimbursed for the reasonable costs of such
enforcement: first, pursuant to Section 3.06 (with respect to the related
Mortgage Loan), out of the related Repurchase Price or Substitution Shortfall
Amount, as applicable, to the extent that such expenses are a specific
component thereof; and second, if at the conclusion of such enforcement
action it is determined that the amounts described in clause first are
insufficient, then pursuant to Section 3.06, out of general collections on
the Mortgage Loans on deposit in the Collection Account in each case with
interest thereon at the Advance Rate from the time such expense was incurred
to, but excluding, the date such expense was reimbursed.
So long as document exceptions are outstanding, on each anniversary
of the Closing Date, the Custodian shall prepare and forward to the Depositor,
the Trustee, the Master Servicer, the Special Servicer, the Controlling Class
Representative (as identified to the Custodian by the Trustee) and the
applicable Mortgage Loan Seller, a document exception report setting forth the
then current status of any Defects related to the Mortgage Files pertaining to
the Mortgage Loans sold by such Mortgage Loan Seller in a format mutually agreed
upon between the Custodian and the Trustee.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall
direct the related Mortgage Loan Seller to deliver to the Custodian for such
Qualifying Substitute Mortgage Loan (with a copy to the Master Servicer), the
related Mortgage File with the related Note endorsed as required by Section
2.01(a)(i) hereof. Monthly Payments due with respect to Qualifying Substitute
Mortgage Loans in or prior to the month of substitution shall not be part of the
Trust Fund and will be retained by the Master Servicer and remitted by the
Master Servicer to the related Mortgage Loan Seller on the next succeeding
Distribution Date. For the month of repurchase or substitution, distributions to
Certificateholders will include the Monthly Payment(s) due on the related
Removed Mortgage Loan and received by the Master Servicer or the Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, as applicable, and such Mortgage Loan Seller shall be entitled to
retain all amounts received thereafter in respect of such Removed Mortgage Loan.
In any month in which a Mortgage Loan Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Removed Mortgage Loans, the
Master Servicer will determine the applicable Substitution Shortfall Amount. The
Trustee shall direct such Mortgage Loan Seller to deposit cash equal to such
amount into the Collection Account and/or the applicable Serviced Whole Loan
Collection Account, as applicable, concurrently with the delivery of the
Mortgage Files for such Qualifying Substitute Mortgage Loans, without any
reimbursement thereof. The Trustee shall also direct such Mortgage Loan Seller
to give written notice to the Depositor and the Master Servicer of such deposit.
The Trustee shall amend the Mortgage Loan Schedule to reflect the removal of
each Removed Mortgage Loan and, if applicable, the substitution of the
Qualifying Substitute Mortgage Loan; and, upon such amendment, the Trustee shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any such substitution, the Qualifying Substitute
Mortgage Loans shall be subject to the terms of this Agreement in all respects.
It is understood and agreed that Section 6 of the Mortgage Loan
Purchase Agreements provides the sole remedy available to the Certificateholders
and the Trustee on behalf of the Certificateholders respecting any Breach
(including a Breach with respect to a Mortgage Loan failing to constitute a
Qualified Mortgage) or any Defect.
(g) In the event that any litigation is commenced which alleges
facts which, in the judgment of the Depositor, could constitute a breach of
any of the Depositor's representations and warranties relating to the
Mortgage Loans, the Depositor hereby reserves the right to conduct the
defense of such litigation at its expense and shall not be required to obtain
any consent from the Master Servicer, the Special Servicer or the Controlling
Class Representative.
(h) If for any reason a Mortgage Loan Seller fails to fulfill its
obligations under the related Mortgage Loan Purchase Agreement with respect
to any Mortgage Loan, the Special Servicer shall use reasonable efforts in
enforcing any obligation of such Mortgage Loan Seller to cure, repurchase or
substitute for such Mortgage Loan under the terms of the related Mortgage
Loan Purchase Agreement all at the expense of such Mortgage Loan Seller.
Section 2.04 Representations, Warranties and Covenants of the Master
Servicer, the Special Servicer and the Trustee. (a) The Master Servicer, as
Master Servicer, hereby represents and warrants with respect to itself to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor, the Special Servicer and the Serviced Companion Loan Noteholders,
as of the Closing Date, that:
(i) The Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Master Servicer is in compliance with the laws of each state (within
the United States of America) in which any related Mortgaged Property is
located to the extent necessary to perform its obligations under this
Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, do not (A) violate the Master Servicer's
certificate of incorporation and by-laws or (B) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or which is applicable to
it or any of its assets, or (C) violate any law, rule, regulation, order,
judgment or decree to which the Master Servicer or its property is
subject, which, in the case of either (B) or (C), is likely to materially
and adversely affect either the ability of the Master Servicer to perform
its obligations under this Agreement or its financial condition;
(iii) The Master Servicer has the full corporate power and authority
to enter into and consummate all transactions to be performed by it
contemplated by this Agreement, has duly authorized the execution,
delivery and performance by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with the
terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Master
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained, or which, if not obtained
would not have a materially adverse effect on the ability of the Master
Servicer to perform its obligations hereunder;
(viii) Each officer and employee of the Master Servicer that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Serviced Whole Loans is covered by errors and omissions insurance
and the fidelity bond in the amounts and with the coverage required by
this Agreement.
(b) The Special Servicer, as Special Servicer, hereby represents
and warrants to and covenants with the Trustee, for its own benefit the
benefit of the Certificateholders, and to the Depositor, the Master Servicer
and the Serviced Companion Loan Noteholders, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the
State of Massachusetts, and the Special Servicer is in compliance with the
laws of each state (within the United States of America) in which any
related Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, do not (A) violate the Special
Servicer's articles of organization or operating agreement and by-laws or
(B) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party
or which is applicable to it or any of its assets, or (C) violate any law,
rule, regulation, order, judgment or decree to which the Special Servicer
or its property is subject, which, in the case of either (B) or (C), is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or its
financial condition;
(iii) The Special Servicer has the full corporate power and
authority to enter into and consummate all transactions to be performed by
it contemplated by this Agreement, has duly authorized the execution,
delivery and performance by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Master Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained, or which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder;
(viii) Each officer and employee of the Special Servicer that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Serviced Whole Loans is covered by errors and omissions insurance
and the fidelity bond in the amounts and with the coverage required by
this Agreement.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Trustee, the Depositor, the Serviced Companion Loan Noteholders and the
Master Servicer or Special Servicer, as the case may be. Upon discovery by
the Depositor, the Master Servicer, the Special Servicer or a Responsible
Officer of the Trustee (or upon written notice thereof from any
Certificateholder) of a breach of any of the representations and warranties
set forth in this Section which materially and adversely affects the
interests of the Certificateholders, the Master Servicer, Special Servicer or
the Trustee in any Mortgage Loan, the party discovering such breach shall
give prompt written notice to the other parties hereto and the Mortgage Loan
Sellers.
(d) The Trustee hereby represents and warrants to the Depositor,
the Master Servicer, the Special Servicer and the Serviced Companion Loan
Noteholders as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United States
and has full power, authority and legal right to own its properties and
conduct its business as presently conducted and to execute, deliver and
perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the Trustee
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any applicable law
(subject to the appointment in accordance with such applicable law of any
co-Trustee or separate Trustee required pursuant to this Agreement),
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties or the organizational documents of the Trustee
or the terms of any material agreement, instrument or indenture to which
the Trustee is a party or by which it is bound.
(iv) The Trustee is not in violation of, and the execution and
delivery of this Agreement by the Trustee and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on the
Trustee or any law, order or regulation of any federal, state, municipal
or governmental agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such event,
would have consequences that would materially and adversely affect the
condition (financial or otherwise) or operation of the Trustee or its
properties or impair the ability of the Trust Fund to realize on the
Mortgage Loans;
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Trustee of or
compliance by the Trustee with this Agreement, or if required, such
approval has been obtained prior to the Cut-off Date.
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests. The Trustee acknowledges the assignment to it of
the Mortgage Loans and the delivery of the Mortgage Files to the Custodian (to
the extent the documents constituting the Mortgage Files are actually delivered
to the Custodian), subject to the provisions of Section 2.01 and Section 2.02
and, concurrently with such delivery, (i) acknowledges and hereby declares that
it holds the Mortgage Loans (excluding Excess Interest) on behalf of the
Lower-Tier REMIC and the Holders of the Certificates (other than the Class S
Certificates); (ii) acknowledges the issuance of the Lower-Tier Regular
Interests and the residual interest in the Lower-Tier REMIC represented by the
Class LR Certificates (as provided in clause (iii)) and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Certificates (other than the Class S and Class LR Certificates);
and (iii) in exchange for the Lower-Tier Regular Interests, has caused to be
executed and caused to be authenticated and delivered to or upon the order of
the Depositor, or as directed by the terms of this Agreement, the Regular
Certificates, Class R and Class LR Certificates (in respect of the residual
interest in the Lower-Tier REMIC) in authorized denominations, in each case
registered in the names set forth in such order or as so directed in this
Agreement and duly authenticated by the Authenticating Agent, which Certificates
and Class S Certificates issued below evidence ownership of the entire Trust
Fund.
The Trustee hereby acknowledges the assignment to it of the Excess
Interest and, concurrently with such assignment, acknowledges the issuance of
the Class S Certificates, which are hereby designated as undivided beneficial
interests in the portion of the Trust Fund consisting of Excess Interest and the
Grantor Trust Distribution Account, which portion shall be treated as a grantor
trust.
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions. (a)
The Lower-Tier Regular Interests issued hereunder are hereby designated as the
"regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as
representing the sole class of "residual interests" in the Lower-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Regular Certificates
are hereby designated as "regular interests" in the Upper-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code and the Class R Certificates are
hereby designated as the sole Class of "residual interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Closing Date is
hereby designated as the "Startup Day" of the Lower-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(l) of the Code is the Rated
Final Distribution Date.
(b) None of the Depositor, the Trustee, the Master Servicer or the
Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as
specifically contemplated herein.
(c) The assets of the Grantor Trust consisting of the right to any
Excess Interest shall be held by the Trustee for the benefit of the Holders
of the Class S Certificates, which Class S Certificates will evidence 100%
beneficial ownership of such assets from and after the Closing Date.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans and
the Serviced Companion Loans. (a) The Master Servicer and the Special Servicer,
each as an independent contractor servicer, shall service and administer the
Mortgage Loans (other than the Non-Serviced Mortgage Loan) and the Serviced
Companion Loans on behalf of the Trust Fund and the Trustee (as Trustee for the
Certificateholders), and, in the case of the Serviced Companion Loans, on behalf
of the Serviced Companion Loan Noteholders, in each case, in accordance with the
Servicing Standard and, with respect to any Serviced Companion Loan, as a
collective whole with the related Mortgage Loan, giving due regard to the junior
nature of the related Serviced B Loan, if any.
The Master Servicer's or Special Servicer's liability for actions
and omissions in its capacity as Master Servicer or Special Servicer, as the
case may be, hereunder is limited as provided herein (including, without
limitation, pursuant to Section 6.03 hereof). To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Master Servicer and Special Servicer shall seek to maximize the timely and
complete recovery of principal and interest on the Notes; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or Special Servicer of the collectibility of
the Mortgage Loans and the Serviced Companion Loans. Subject only to the
Servicing Standard, the Master Servicer and Special Servicer shall have full
power and authority, acting alone or through sub-servicers (subject to paragraph
(c) of this Section 3.01, to the related sub-servicing agreement with each
sub-servicer and to Section 3.02), to do or cause to be done any and all things
in connection with such servicing and administration that it may deem consistent
with the Servicing Standard and, in its reasonable judgment, in the best
interests of the Certificateholders, including, without limitation, with respect
to each Mortgage Loan (other than the Non-Serviced Mortgage Loan, and in the
case of the Serviced Companion Loans, in the best interests of the
Certificateholders and the Serviced Companion Loan Noteholders, as a collective
whole) to prepare, execute and deliver, on behalf of the Certificateholders and
Serviced Companion Loan Noteholders and the Trustee or any of them: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien on each Mortgaged Property and
related collateral; (ii) any modifications, waivers, consents or amendments to
or with respect to any documents contained in the related Mortgage File; and
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments, with respect to
the Mortgage Loans and the Mortgaged Properties. Notwithstanding the foregoing,
neither the Master Servicer nor the Special Servicer shall modify, amend, waive
or otherwise consent to any change of the terms of any Mortgage Loan except
under the circumstances described in Sections 3.03, 3.09, 3.10, 3.28, 3.30 and
3.32 hereof. The Master Servicer and Special Servicer shall provide to the
Borrowers related to the Mortgage Loans that it is servicing any reports
required to be provided to them thereby pursuant to the related Loan Documents.
Subject to Section 3.11, the Trustee shall, upon the receipt of a written
request of a Servicing Officer, execute and deliver to the Master Servicer and
Special Servicer any powers of attorney and other documents prepared by the
Master Servicer and Special Servicer and necessary or appropriate (as certified
in such written request) to enable the Master Servicer and Special Servicer to
carry out their servicing and administrative duties hereunder.
(b) Unless otherwise provided in the related Note or related
Co-Lender Agreement, the Master Servicer shall apply any partial Principal
Prepayment received on a Mortgage Loan (other than the Non-Serviced Mortgage
Loan) or Serviced Companion Loan, as applicable, on a date other than a Due
Date to the Stated Principal Balance of such Mortgage Loan or Serviced
Companion Loan, as applicable, as of the Due Date immediately following the
date of receipt of such partial Principal Prepayment. Unless otherwise
provided in the related Note or related Co-Lender Agreement, the Master
Servicer shall apply any amounts received on U.S. Treasury obligations (which
shall not be redeemed by the Master Servicer prior to the maturity thereof)
in respect of a Mortgage Loan (other than the Non-Serviced Mortgage Loan) or,
Serviced Companion Loan, as applicable, being defeased pursuant to its terms
to the Stated Principal Balance of and interest on such Mortgage Loan or
Serviced Companion Loan, as applicable, as of the Due Date immediately
following the receipt of such amounts.
(c) The Master Servicer and, with the consent of the Controlling
Class Representative, the Special Servicer, may enter into Sub-Servicing
Agreements with third parties with respect to any of its respective
obligations hereunder, provided, that (i) any such agreement requires the
Sub-Servicer to comply with all of the applicable terms and conditions of
this Agreement and shall be consistent with the provisions of this Agreement,
the terms of the respective Mortgage Loans and, Serviced Companion Loans and,
in the case of a Serviced Companion Loan, the related Co-Lender Agreement,
(ii) if such Sub-Servicer is a Servicing Function Participant or an
Additional Servicer, any such agreement provides that (x) the failure of such
Sub-Servicer to comply with any of the requirements under Article X of this
Agreement applicable to such Sub-Servicer, including the failure to deliver
any reports or certificates at the time such report or certification is
required under Article X and (y) the failure of the related Sub-Servicer to
comply with any requirements to deliver any items required by Items 1122 and
1123 of Regulation AB under any other pooling and servicing agreement
relating to any other series of certificates offered by the Depositor shall
constitute an event of default by such Sub-Servicer upon the occurrence of
which the Master Servicer shall (and the Depositor may) immediately terminate
the related Sub-Servicer under the related Sub-Servicing Agreement, which
termination shall be deemed for cause, (iii) no Sub-Servicer retained by the
Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan, or Serviced Companion
Loan, as applicable, or foreclose any Mortgage without the approval of the
Master Servicer or the Special Servicer, as applicable, which approval shall
be given or withheld in accordance with the procedures set forth in Sections
3.09, 3.10, 3.28, 3.30 or 3.32 (as applicable), (iv) such agreement shall be
consistent with the Servicing Standard and (v) with respect to any
Sub-Servicing Agreement entered into after the Closing Date and prior to the
date upon which the Trust's Exchange Act reporting obligations are suspended
by the filing of a Form 15 as contemplated by Section 10.10, if such
Sub-Servicer is a Servicing Function Participant or an Additional Servicer,
such Sub-Servicer, at the time the related Sub-Servicing Agreement is entered
into, is not a Prohibited Party. Any such Sub-Servicing Agreement may permit
the Sub-Servicer to delegate its duties to agents or subcontractors so long
as the related agreements or arrangements with such agents or subcontractors
are consistent with the provisions of this Section 3.01(c) (including, for
the avoidance of doubt, that no such agent or subcontractor is a Prohibited
Party, if such agent or subcontractor would be a Servicing Function
Participant, at the time the related sub-servicing agreement is entered
into). Any monies received by a Sub-Servicer pursuant to a Sub-Servicing
agreement (other than sub-servicing fees) shall be deemed to be received by
the Master Servicer on the date received by such Sub-Servicer.
Any Sub-Servicing Agreement entered into by the Master Servicer or
the Special Servicer, as applicable, shall provide that it may be assumed by the
Trustee if the Trustee has assumed the duties of the Master Servicer or the
Special Servicer, respectively, or any successor Master Servicer or Special
Servicer, as applicable, without cost or obligation to the assuming party or the
Trust Fund, upon the assumption by such party of the obligations, except to the
extent they arose prior to the date of assumption, of the Master Servicer or the
Special Servicer, as applicable, pursuant to Section 7.02 (it being understood
that any such obligations shall be the obligations of the terminated Master
Servicer or Special Servicer, as applicable, only).
Any Sub-Servicing Agreement, and any other transactions or services
relating to the Mortgage Loans or the Serviced Companion Loans involving a
Sub-Servicer, shall be deemed to be between the Master Servicer or the Special
Servicer, as applicable, and such Sub-Servicer alone, and the Trustee, the Trust
Fund and Certificateholders and, if applicable, Serviced Companion Loan
Noteholders shall not be deemed parties thereto and shall have no claims, rights
(except as specified below), obligations, duties or liabilities with respect to
the Sub-Servicer, except as set forth in Section 3.01(c)(ii) and Section
3.01(d).
In the event CWCapital (or any successor in interest, including a
Successful Sub-Servicing Bidder) is not an acceptable or approved master
servicer or primary servicer to the Rating Agencies at the time the Trustee or a
successor Master Servicer becomes successor Master Servicer, CWCapital (or any
successor in interest, including a Successful Sub-Servicing Bidder) shall have
30 days after notice from the Trustee or the successor Master Servicer to either
(i) cure such failure or (ii) assign the related Sub-Servicing Agreement to a
Successful Sub-Servicing Bidder (as defined below) subject, if applicable, to
the terms of the Mortgage Loan documents. If CWCapital (or any successor in
interest, including a Successful Sub-Servicing Bidder), as applicable, fails to
either (i) cure such failure or (ii) assign such Sub-Servicing Agreement to a
Successful Sub-Servicing Bidder, the Trustee or the successor Master Servicer
shall terminate such Sub-Servicing Agreement.
A "Successful Sub-Servicing Bidder" will be any prospective
subservicer candidate reasonably acceptable to the Depositor and the successor
Master Servicer and acceptable to the Rating Agencies, as evidenced by written
confirmation from the Rating Agencies that the assumption by such Successful
Sub-Servicing Bidder of such Sub-Servicing Agreement, will not cause the
downgrade, withdrawal or qualification of the then current ratings of the
Certificates or violate the terms of any Mortgage Loan documents, which
candidate would be eligible to act as Sub-Servicer hereunder.
Notwithstanding the provisions of any Sub-Servicing Agreement and
this Section 3.01, in no event shall the Trust Fund, the Depositor or any
Serviced Companion Loan bear any termination fee required to be paid to any
Sub-Servicer as a result of the termination of any Sub-Servicing Agreement.
(d) If the Trustee or any successor Master Servicer assumes the
obligations of the Master Servicer, or if the Trustee or any successor
Special Servicer assumes the obligations of the Special Servicer, in each
case in accordance with Section 7.02, the Trustee, the successor Master
Servicer or such successor Special Servicer, as applicable, to the extent
necessary to permit the Trustee, the successor Master Servicer or such
successor Special Servicer, as applicable, to carry out the provisions of
Section 7.02, shall, without act or deed on the part of the Trustee, the
successor Master Servicer or such successor Special Servicer, as applicable,
succeed to all of the rights and obligations of the Master Servicer or the
Special Servicer, as applicable, under any Sub-Servicing Agreement entered
into by the Master Servicer or the Special Servicer, as applicable, pursuant
to Section 3.01(c). In such event, such successor shall be deemed to have
assumed all of the Master Servicer's or the Special Servicer's interest, as
applicable, therein (but not any liabilities or obligations in respect of
acts or omissions of the Master Servicer or the Special Servicer, as
applicable, prior to such deemed assumption) and to have replaced the Master
Servicer or the Special Servicer, as applicable, as a party to such
Sub-Servicing Agreement to the same extent as if such Sub-Servicing Agreement
had been assigned to such successor, except that the Master Servicer or the
Special Servicer, as applicable, shall not thereby be relieved of any
liability or obligations under such Sub-Servicing Agreement that accrued
prior to the succession of such successor.
If the Trustee or any successor Master Servicer or Special Servicer,
as applicable, assumes the servicing obligations of the Master Servicer or the
Special Servicer, as applicable, then upon request of such successor, the Master
Servicer or Special Servicer, as applicable, shall at its own expense (except
(i) in the event that the Special Servicer is terminated pursuant to Section
3.25(b), at the expense of the Certificateholders effecting such termination, as
applicable; or (ii) in the event that the Master Servicer or the Special
Servicer is terminated pursuant to Section 6.04(c), at the expense of the Trust)
deliver to such successor all documents and records relating to any
Sub-Servicing Agreement and the Mortgage Loans and/or, if applicable, the
Serviced Companion Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and shall otherwise use commercially
reasonable efforts to effect the orderly and efficient transfer of any
Sub-Servicing Agreement to such successor. The Master Servicer shall be required
to assume the obligations of the Special Servicer and nothing in this paragraph
shall imply otherwise.
(e) The parties hereto acknowledge that each Whole Loan is subject
to the terms and conditions of the related Co-Lender Agreement and, with
respect to the Non-Serviced Mortgage Loan, further subject to the servicing
under and all other terms and conditions of the Other Pooling and Servicing
Agreement. The parties hereto further recognize the respective rights and
obligations of (1) the Desert Passage Pari Passu Loan Noteholder under the
Desert Passage Pari Passu Intercreditor Agreement, including, without
limitation with respect to (A) the allocation of collections (and all other
amounts received in connection with the related Non-Serviced Whole Loan) on
or in respect of the Desert Passage Mortgage Loan in accordance with Section
1 of the Desert Passage Intercreditor Agreement, and (B) the allocation of
Default Interest and Penalty Charges on or in respect of the Desert Passage
Mortgage Loan in accordance with Section 1 of the Desert Passage
Intercreditor Agreement, (2) the Buckeye Portfolio B Loan Noteholder under
the Buckeye Intercreditor Agreement, including, without limitation with
respect to (A) the allocation of collections (and all other amounts received
in connection with the related Serviced Whole Loan) on or in respect of the
Buckeye Portfolio Mortgage Loan in accordance with Sections 3 and 4 of the
Buckeye Portfolio Intercreditor Agreement, and (B) the allocation of Default
Interest and Penalty Charges on or in respect of the Buckeye Portfolio
Mortgage Loan in accordance with Sections 3 and 4 of the Buckeye Portfolio
Intercreditor Agreement and (3) the Valley Forge B Loan Noteholder under the
Valley Forge Intercreditor Agreement, including, without limitation with
respect to (A) the allocation of collections (and all other amounts received
in connection with the related Serviced Whole Loan) on or in respect of the
Valley Forge Mortgage Loan in accordance with Sections 3 and 4 of the Valley
Forge Intercreditor Agreement, and (B) the allocation of Default Interest and
Penalty Charges on or in respect of the Valley Forge Mortgage Loan in
accordance with Sections 3 and 4 of the Valley Forge Intercreditor Agreement.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's and Special Servicer's
obligations and responsibilities hereunder and such Master Servicer's and
Special Servicer's authority with respect to the Serviced Whole Loans are
limited by and subject to the terms of the related Co-Lender Agreement and, with
respect to the Non-Serviced Mortgage Loan, the rights of the Other Servicer and
the Other Special Servicer under the Other Pooling and Servicing Agreement. The
Master Servicer shall, consistent with the Servicing Standard, enforce the
rights of the Trustee (as holder of the Non-Serviced Mortgage Loan) under the
related Co-Lender Agreement and the Other Pooling and Servicing Agreement. The
Master Servicer shall take such actions as it shall deem reasonably necessary to
facilitate the servicing of the Non-Serviced Mortgage Loan by the Other Servicer
and the Other Special Servicer including, but not limited to, delivering
appropriate Requests for Release to the Trustee and Custodian (if any) in order
to deliver any portion of the related Mortgage File to the Other Servicer or the
Other Special Servicer under the Other Pooling and Servicing Agreement. The
Trustee, on behalf of the Certificateholders, hereby assumes the obligations of
the holder of the Non-Serviced Mortgage Loan under the related Co-Lender
Agreement; provided that the Master Servicer, on behalf of the Trustee, will
perform any applicable servicing-related obligations set forth therein, and any
other obligations will be performed by either the Trustee, the Master Servicer
or the Special Servicer, as applicable, as such parties may mutually agree.
In the event that any Mortgage Loan included in any Serviced Whole
Loan is no longer part of the Trust Fund and the servicing and administration of
such Whole Loan is to be governed by a separate servicing agreement and not by
this Agreement, the Master Servicer and, if such Serviced Whole Loan is then
being specially serviced hereunder, the Special Servicer, shall continue to act
in such capacities under such separate servicing agreement, which agreement
shall be reasonably acceptable to the Master Servicer and/or the Special
Servicer, as the case may be, and shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
that such Serviced Whole Loan and the related Mortgaged Property shall be
serviced as if they were the sole assets serviced and administered thereunder
and the sole source of funds thereunder and except that there shall be no
further obligation of any Person to make P&I Advances. All amounts due the
Master Servicer (including Advances and interest thereon) pursuant to this
Agreement and the applicable Co-Lender Agreement shall be paid to the terminated
Master Servicer on the first Servicer Remittance Date following termination. In
addition, until such time as a separate servicing agreement with respect to such
Serviced Whole Loan and any related Serviced REO Property has been entered into
then, notwithstanding that neither such Mortgage Loan nor any related Serviced
REO Property is part of the Trust Fund, the Trustee shall continue to hold the
Mortgage File and the Master Servicer and, if applicable, the Special Servicer
shall (subject to the preceding sentence) continue to service such Serviced
Whole Loan or any related Serviced REO Property, as the case may be, under this
Agreement as if it were a separate servicing agreement. Nothing herein shall be
deemed to override the provisions of a Co-Lender Agreement with respect to the
rights of the related noteholders thereunder and with respect to the servicing
and administrative duties and obligations with respect to such Whole Loans. In
the event of any inconsistency or discrepancy between the provisions, terms or
conditions of a Co-Lender Agreement related to a Serviced Whole Loan and the
provisions, terms or conditions of this Agreement, the related Co-Lender
Agreement shall govern, and as to any matter on which such Co-Lender Agreement
is silent or makes reference to this Agreement, this Agreement shall govern.
Section 3.02 Liability of the Master Servicer and the Special
Servicer. Notwithstanding any Sub-Servicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or Special Servicer and any Person acting as sub-servicer (or its
agents or subcontractors) or any reference to actions taken through any Person
acting as sub-servicer or otherwise, the Master Servicer or the Special
Servicer, as applicable, shall remain obligated and primarily liable to the
Trustee (on behalf of the Certificateholders), the Certificateholders and, with
respect to the Serviced Whole Loans, the Serviced Companion Loan Noteholders,
for the servicing and administering of the Mortgage Loans and Serviced Companion
Loans in accordance with the provisions of this Agreement without diminution of
such obligation or liability by virtue of such sub-servicing agreements or
arrangements or by virtue of indemnification from the Depositor or any other
Person acting as sub-servicer (or its agents or subcontractors) to the same
extent and under the same terms and conditions as if the Master Servicer or the
Special Servicer, as applicable, alone were servicing and administering the
Mortgage Loans and the Serviced Companion Loans. Each of the Master Servicer and
the Special Servicer shall be entitled to enter into an agreement with any
sub-servicer providing for indemnification of the Master Servicer or the Special
Servicer, as applicable, by such sub-servicer, and nothing contained in this
Agreement shall be deemed to limit or modify such indemnification, but no such
agreement for indemnification shall be deemed to limit or modify this Agreement.
Section 3.03 Collection of Mortgage Loan and Serviced Companion Loan
Payments. (a) The Master Servicer (with respect to all the Mortgage Loans and
the Serviced Companion Loans, other than Specially Serviced Loans) and the
Special Servicer (with respect to Specially Serviced Loans) shall use reasonable
efforts to collect all payments called for under the terms and provisions of the
Mortgage Loans (other than the Non-Serviced Mortgage Loan) and the Serviced
Companion Loans each is obligated to service hereunder, and shall follow the
Servicing Standard with respect to such collection procedures; provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the Master Servicer or the Special Servicer of the
collectibility of the Mortgage Loans and the Serviced Companion Loans; provided,
further, that with respect to the Mortgage Loans or Serviced Whole Loans, as
applicable, that have Anticipated Repayment Dates, so long as the related
Borrower is in compliance with each provision of the related loan documents, the
Master Servicer and Special Servicer (including the Special Servicer in its
capacity as a Certificateholder, if applicable) shall not take any enforcement
action with respect to the failure of the related Borrower to make any payment
of Excess Interest, other than requests for collection, until the maturity date
of such Mortgage Loan or Serviced Whole Loan, as applicable, or the outstanding
principal balance of such Mortgage Loan or Serviced Whole Loan, as applicable,
has been paid in full, however, consistent with the Servicing Standard, the
Master Servicer, or the Special Servicer each may in its discretion waive the
Excess Interest (even at the maturity date) in connection with any Mortgage Loan
it is obligated to service hereunder if taking such action is in the best
interest of the Certificateholders as a collective whole. With respect to each
Performing Loan (other than the Non-Serviced Mortgage Loan), the Master Servicer
shall use its reasonable efforts, consistent with the Servicing Standard, to
collect income statements and rent rolls from Borrowers as required by the Loan
Documents and the terms hereof. The Master Servicer shall provide at least 90
days' notice (with a copy to the Special Servicer) to the Borrowers of Balloon
Payments coming due. Consistent with the foregoing, the Master Servicer (with
respect to each Performing Loan) or the Special Servicer (with respect to
Specially Serviced Loans) may in their discretion waive any late payment charge
in connection with any delinquent Monthly Payment or Balloon Payment with
respect to any Mortgage Loan or Serviced Companion Loan that it is servicing. In
addition, the Special Servicer shall be entitled to take such actions with
respect to the collection of payments on the Mortgage Loans and the Serviced
Companion Loans as are permitted or required under Section 3.28 hereof.
(b) The Master Servicer shall, within one Business Day following
receipt thereof, deposit into the applicable Serviced Whole Loan Collection
Account all amounts received with respect to each Serviced Whole Loan or any
related Serviced REO Property.
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Special Servicer, in the case of Specially Serviced
Loans and Serviced REO Loans and, if applicable, the related Serviced Companion
Loans that are Specially Serviced Loans or Serviced REO Loans, and the Master
Servicer, in the case of all Performing Loans (other than the Non-Serviced
Mortgage Loan) that it is servicing, shall maintain accurate records with
respect to each related Mortgaged Property reflecting the status of taxes,
assessments and other similar items that are or may become a lien thereon and
the status of insurance premiums payable with respect thereto. With respect to
each Specially Serviced Loan, the Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to collect income statements
and rent rolls from Borrowers as required by the Loan Documents. The Special
Servicer, in the case of Specially Serviced Loans and Serviced REO Loans, and
the Master Servicer, in the case of all Performing Loans, shall use reasonable
efforts consistent with the Servicing Standard to, from time to time, (i) obtain
all bills for the payment of such items (including renewal premiums), and (ii)
effect payment of all such bills with respect to such Mortgaged Properties prior
to the applicable penalty or termination date, in each case employing for such
purpose Escrow Payments as allowed under the terms of the related Mortgage Loan
or Serviced Companion Loan. If a Borrower fails to make any such payment on a
timely basis or collections from the Borrower are insufficient to pay any such
item before the applicable penalty or termination date, the Master Servicer
shall advance the amount of any shortfall as a Property Advance unless the
Master Servicer determines in accordance with the Servicing Standard that such
Advance would be a Nonrecoverable Advance (provided that with respect to
advancing insurance premiums or delinquent tax assessments the Master Servicer
shall comply with the provisions of the second to last paragraph in Section
3.24(d)). The Master Servicer shall be entitled to reimbursement of Property
Advances, with interest thereon at the Advance Rate, that it makes pursuant to
this Section 3.04 from amounts received on or in respect of the related Mortgage
Loan or Serviced Whole Loan respecting which such Advance was made or if such
Advance has become a Nonrecoverable Advance, to the extent permitted by Section
3.06 of this Agreement. No costs incurred by the Master Servicer in effecting
the payment of taxes and assessments on the Mortgaged Properties shall, for the
purpose of calculating distributions to Certificateholders or Serviced Companion
Loan Noteholders, be added to the amount owing under the related Mortgage Loans
or, Serviced Companion Loans, notwithstanding that the terms of such Mortgage
Loans or Serviced Companion Loans so permit.
The parties acknowledge that with respect to the Non-Serviced
Mortgage Loan, the Other Servicer is obligated to (or any other service provider
provided in the Other Pooling and Servicing Agreement may) make property
advances with respect to the Non-Serviced Mortgage Loan, pursuant to the Other
Pooling and Servicing Agreement. The Other Servicer (or any other service
provider provided in the Other Pooling and Servicing Agreement) shall be
entitled to reimbursement for nonrecoverable property advances (as such term or
similar term may be defined in the Other Pooling and Servicing Agreement) with,
in each case, any accrued and unpaid interest thereon provided for under the
Other Pooling and Servicing Agreement in the manner set forth in the Other
Pooling and Servicing Agreement, the related Co-Lender Agreement and Section
3.06(b)(v).
(b) The Master Servicer shall segregate and hold all funds
collected and received pursuant to any Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or any Serviced Companion Loan that it is
servicing constituting Escrow Payments separate and apart from any of its own
funds and general assets and shall establish and maintain one or more
segregated custodial accounts (each, an "Escrow Account") into which all
Escrow Payments shall be deposited within two (2) Business Days after receipt
and maintained in accordance with the requirements of the related Mortgage
Loan or Serviced Whole Loan, as applicable, and in accordance with the
Servicing Standard. The Master Servicer shall also deposit into each Escrow
Account any amounts representing losses on Permitted Investments pursuant to
Section 3.07(b) and any Insurance Proceeds or Liquidation Proceeds which are
required to be applied to the restoration or repair of any Mortgaged Property
pursuant to the related Mortgage Loan or Serviced Whole Loan. Escrow Accounts
shall be Eligible Accounts (except to the extent the related Mortgage Loan
requires it to be held in an account that is not an Eligible Account);
provided, however, in the event that the ratings of the financial institution
holding such account are downgraded to a ratings level below that of an
Eligible Account (except to the extent the related Mortgage Loan requires it
to be held in an account that is not an Eligible Account), the Master
Servicer shall have 30 Business Days (or such longer time as confirmed by a
written confirmation from the Rating Agencies, obtained at the expense of the
Master Servicer, that such longer time shall not result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to any of
the Certificates) to transfer such account to an Eligible Account. Escrow
Accounts shall be entitled "Midland Loan Services, Inc., as Master Servicer,
in trust for Xxxxx Fargo Bank, N.A., as Trustee in trust for Holders of
Deutsche Mortgage & Asset Receiving Corporation, COMM 2006-C7 Commercial
Mortgage Pass-Through Certificates and Various Borrowers and, if applicable,
Serviced Companion Loan Noteholders." Withdrawals from an Escrow Account may
be made by the Master Servicer only:
(i) to effect timely payments of items constituting Escrow Payments
for the related Mortgage;
(ii) to transfer funds to the Collection Account and/or the
applicable Serviced Whole Loan Collection Account (or any sub-account
thereof) to reimburse the Master Servicer, the Special Servicer or the
Trustee for any Property Advance (with interest thereon at the Advance
Rate) relating to Escrow Payments, but only from amounts received with
respect to the related Mortgage Loan and/or Serviced Whole Loan, as
applicable, which represent late collections of Escrow Payments
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and/or
Serviced Whole Loan, as applicable, and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan or Serviced
Whole Loan, as applicable;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if such
income is required to be paid to the related Borrower under law or by the
terms of the Mortgage Loan or Serviced Whole Loan, or otherwise to the
Master Servicer; or
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein or to refund amounts to Borrowers
determined to be overages.
(c) The Master Servicer shall, as to each Mortgage Loan (other
than the Non-Serviced Mortgage Loan) and each Serviced Companion Loan, (i)
maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar
items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use
reasonable efforts to obtain, from time to time, all bills for (or otherwise
confirm) the payment of such items (including renewal premiums) and, for such
Mortgage Loans and Serviced Companion Loans that require the related Borrower
to escrow for such items, shall effect payment thereof prior to the
applicable penalty or termination date. For purposes of effecting any such
payment for which it is responsible, the Master Servicer shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan and Serviced
Companion Loan (or, if such Mortgage Loan or Serviced Companion Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar
items, the Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to comply with the
requirement of the related Mortgage that the Borrower make payments in
respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect
to the related Mortgaged Property for nonpayment of such items). Subject to
Section 3.24, the Master Servicer shall timely make a Property Advance with
respect to the Mortgage Loans and Serviced Whole Loans to cover any such item
which is not so paid, including any penalties or other charges arising from
the Borrower's failure to timely pay such items.
Section 3.05 Collection Account; Excess Liquidation Proceeds
Account; Distribution Accounts; Interest Reserve Account and Serviced Whole Loan
Collection Accounts. (a) The Master Servicer shall establish and maintain the
Collection Account, for the benefit of the Certificateholders and the Trustee as
the Holder of the Lower-Tier Regular Interests. The Collection Account shall be
established and maintained as an Eligible Account. Amounts attributable to the
Mortgage Loans (other than Excess Interest) will be assets of the Lower-Tier
REMIC. Amounts attributable to the Serviced Companion Loans will not be assets
of the Trust Fund.
The Master Servicer shall deposit or cause to be deposited in the
Collection Account within one Business Day following receipt the following
payments and collections received or made by or on behalf of it on or with
respect to the Mortgage Loans subsequent to the Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan), including
the principal component of all Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan) (net of
the related Servicing Fees), including Prepayment Premiums, Default
Interest, Yield Maintenance Charges, Excess Interest and the interest
component of all Unscheduled Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from the related REO Account
(other than the Serviced Whole Loan REO Account) pursuant to Section
3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan), to the
extent not permitted to be retained by the Master Servicer as provided
herein;
(vi) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (other than any Mortgage Loan related to a
Serviced Whole Loan) or any Serviced REO Property (other than a Serviced
REO Property related to a Serviced Whole Loan), other than Excess
Liquidation Proceeds and Liquidation Proceeds that are received in
connection with a purchase of all the Mortgage Loans and any REO
Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01, together with
any amounts representing recoveries of Nonrecoverable Advances, including
any recovery of Unliquidated Advances, in respect of the related Mortgage
Loans (other than any Mortgage Loan related to a Serviced Whole Loan);
provided, however, that any Liquidation Proceeds related to a sale
pursuant to Section 3.18 hereof or pursuant to the related Co-Lender
Agreement of a Mortgage Loan included in a Serviced Whole Loan shall be
deposited directly into the Collection Account and applied solely to pay
expenses relating to that Mortgage Loan and to Available Funds;
(vii) Penalty Charges on the Mortgage Loans (other than any Mortgage
Loan related to a Serviced Whole Loan) to the extent required to offset
interest on Advances and Additional Trust Fund Expenses pursuant to
Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loans (other than any
Mortgage Loan related to a Serviced Whole Loan);
(ix) any other amounts required by the provisions of this Agreement
(including without limitation any amounts to be transferred from the
Serviced Whole Loan Collection Account pursuant to Section 3.06(c)(i)(B)
and, with respect to the B Loans or any mezzanine indebtedness that may
exist on a future date, all amounts received pursuant to the cure and
purchase rights or reimbursement obligations set forth in the related
Co-Lender Agreement or mezzanine intercreditor agreement, as applicable)
to be deposited into the Collection Account by the Master Servicer or
Special Servicer;
(x) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loans (other than any Non-Serviced Mortgage Loan or any Mortgage
Loan related to a Serviced Whole Loan) pursuant to Section 4.01(i); and
(xi) any Loss of Value Payments, as set forth in Section 3.06(f).
In the case of Excess Liquidation Proceeds, the Master Servicer
shall make appropriate ledger entries received with respect thereto, which the
Master Servicer shall hold for (i) the Trustee for the benefit of the Class or
Classes of Certificateholders (other than the Class S Certificates) and (ii) for
the benefit of any Serviced Companion Loan Noteholder entitled thereto. Any
Excess Liquidation Proceeds shall be identified separately from any other
amounts held in the Collection Account (with amounts attributable to each Class
or Classes and any Serviced Companion Loan also identified separately).
The foregoing requirements for deposits in the Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
Master Servicer and, to the extent permitted by applicable law, the Master
Servicer or the Special Servicer, as applicable in accordance with Section 3.12
hereof, shall be entitled to retain any such charges and fees received with
respect to the Mortgage Loans that it is servicing as additional compensation.
In the event that the Master Servicer deposits in the Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the contrary
notwithstanding.
Upon receipt of any of the amounts described in clauses (i), (ii),
(v), (vi) and (vii) above with respect to any Specially Serviced Loan which is
not a Serviced REO Loan, the Special Servicer shall remit within one Business
Day after receipt such amounts to the Master Servicer for deposit into the
Collection Account in accordance with the second paragraph of this Section 3.05,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement or other appropriate reason. Any such amounts received by the
Special Servicer with respect to a Serviced REO Property (other than any
Serviced REO Property related to the Serviced Whole Loans) shall be deposited by
the Special Servicer into the REO Account and remitted to the Master Servicer
for deposit into the Collection Account pursuant to Section 3.17(b). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse without recourse or warranty such check to
the order of the Master Servicer and shall promptly deliver any such check to
the Master Servicer by overnight courier.
(b) The Trustee shall establish and maintain the Lower-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests. The Lower-Tier Distribution Account shall be established and
maintained as an Eligible Account or as a subaccount of an Eligible Account.
(c) The Trustee shall establish and maintain the Grantor Trust
Distribution Account with respect to the Excess Interest, which shall be an
asset of the Grantor Trust and beneficially owned by the Holders of the Class
S Certificates and shall not be an asset of any Trust REMIC. The Grantor
Trust Distribution Account shall be established and maintained as an Eligible
Account or as a subaccount of an Eligible Account. Following the distribution
of Excess Interest to the Class S Certificateholders on the first
Distribution Date after which there are no longer any Mortgage Loans
outstanding which pursuant to their terms could pay Excess Interest, the
Trustee shall terminate the Grantor Trust Distribution Account.
(d) With respect to each Distribution Date, the Master Servicer
shall deliver to the Trustee on or before the Servicer Remittance Date the
funds then on deposit in the Collection Account after giving effect to
withdrawals of funds pursuant to Section 3.06 and deposits from the Serviced
Whole Loan Collection Account pursuant to Section 3.06. Upon receipt from the
Master Servicer of such amounts held in the Collection Account, the Trustee
shall deposit (A) in the Lower-Tier Distribution Account (i) the amount of
Available Funds to be distributed pursuant to Section 4.01 hereof on such
Distribution Date and (ii) the amount of Excess Liquidation Proceeds
allocable to any Mortgage Loan to be deposited into the Lower-Tier
Distribution Account (which the Trustee shall then deposit in the Excess
Liquidation Proceeds Account) pursuant to Section 3.06, (B) Withheld Amounts
to be deposited into the Interest Reserve Account pursuant to Section
3.05(f), (C) at the direction of the Trustee, the Trustee Fee which shall be
retained by the Trustee, and (D) in the Grantor Trust Distribution Account
the Excess Interest to be distributed to the Class S Certificateholders.
(e) If any Loss of Value Payments are received in connection with
a Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(d), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss
of Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it. The Trustee and the Special Servicer shall account
for the Loss of Value Reserve Fund as an outside reserve fund within the
meaning of Treasury Regulations Section 1.860G-2(h) and not an asset of
either REMIC. Furthermore, for all federal tax purposes, the Trustee and the
Special Servicer shall (i) treat amounts paid out of the Loss of Value
Reserve Fund through the Collection Account to the Certificateholders as
distributions by the REMICs and (ii) treat any amounts paid out of the Loss
of Value Reserve Fund through the Collection Account to a Mortgage Loan
Seller as distributions by the Trust Fund to such Mortgage Loan Seller as
beneficial owner of the Loss of Value Reserve Fund. The applicable Mortgage
Loan Seller will be the beneficial owner of the Loss of Value Reserve Fund
for all federal income tax purposes, and shall be taxable on all income
earned thereon.
(f) The Trustee shall establish and maintain the Interest Reserve
Account in its own name, in trust for the benefit of the Certificateholders
(other than the Class S Certificateholders) and the Trustee as the Holder of
the Lower-Tier Regular Interests. The Interest Reserve Account shall be
established and maintained as an Eligible Account or as a subaccount of an
Eligible Account.
On each Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
unless in either case such Servicer Remittance Date is the final Servicer
Remittance Date, the Trustee shall calculate the Withheld Amounts. On each such
Servicer Remittance Date, the Trustee shall, with respect to each Mortgage Loan
that does not accrue interest on the basis of a 360-day year of twelve 30-day
months, withdraw from the Lower-Tier Distribution Account and deposit in the
Interest Reserve Account an amount equal to the aggregate of the Withheld
Amounts calculated in accordance with the previous sentence. If the Trustee
shall deposit in the Interest Reserve Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Interest
Reserve Account, any provision herein to the contrary notwithstanding. On or
prior to the Servicer Remittance Date in March of each calendar year (or in
February if the final Distribution Date will occur in such month), the Trustee
shall transfer to the Lower-Tier Distribution Account the aggregate of all
Withheld Amounts on deposit in the Interest Reserve Account.
(g) The Trustee shall establish and maintain the Upper-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established
and maintained as an Eligible Account or a subaccount of an Eligible Account.
Promptly on each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account and deposit in the Upper-Tier Distribution
Account on or before such date the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges for such
Distribution Date to be distributed in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(a)(ii) and Section 4.01(c) hereof on such
date.
(h) With respect to each Serviced Whole Loan, the Master Servicer
shall maintain, or cause to be maintained, a Serviced Whole Loan Collection
Account in which the Master Servicer shall deposit or cause to be deposited
within one Business Day following receipt the following payments and
collections received or made by or on behalf of it on such Serviced Whole
Loan subsequent to the Cut-off Date:
(i) all payments on account of principal on such Serviced Whole
Loan, including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on such Serviced Whole Loan
(net of the related Servicing Fees), including Prepayment Premiums,
Default Interest, Yield Maintenance Charges and the interest component of
all Unscheduled Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in such Serviced Whole Loan Collection Account;
(iv) all Net REO Proceeds withdrawn from the related REO Account in
respect of such Serviced Whole Loan pursuant to Section 3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to such Serviced Whole
Loan, to the extent not permitted to be retained by the Master Servicer as
provided herein;
(vi) all Insurance Proceeds and Liquidation Proceeds received in
respect of such Serviced Whole Loan or any related Serviced REO Property,
other than Excess Liquidation Proceeds and Liquidation Proceeds that are
received in connection with a purchase of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01, together with
any amounts representing recoveries of Nonrecoverable Advances, including
any recovery of Unliquidated Advances, in respect of such Serviced Whole
Loan; provided further, however, that any Liquidation Proceeds related to
a sale pursuant to Section 3.18 hereof or pursuant to the related
Co-Lender Agreement of a Mortgage Loan included in a Serviced Whole Loan
shall be deposited directly into the Collection Account and applied solely
to pay expenses relating to that Mortgage Loan and to Available Funds;
(vii) Penalty Charges on such Serviced Whole Loan to the extent
required to offset interest on Advances and Additional Trust Fund Expenses
pursuant to Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loan included in such
Serviced Whole Loan;
(ix) any other amounts required by the provisions of this Agreement
to be deposited into the applicable Serviced Whole Loan Collection Account
by the Master Servicer or the Special Servicer; and
(x) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loan included in such Serviced Whole Loan pursuant to Section
4.01(i).
The foregoing requirements for deposits into the applicable Serviced
Whole Loan Collection Account shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments in the nature
of late payment charges (subject to Section 3.12 hereof), Assumption Fees, loan
modification fees, loan service transaction fees, extension fees, demand fees,
beneficiary statement charges and similar fees need not be deposited into the
applicable Serviced Whole Loan Collection Account by the Master Servicer and, to
the extent permitted by applicable law, the Master Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Serviced Whole Loans as additional compensation. In the event that the Master
Servicer deposits in the applicable Serviced Whole Loan Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Serviced Whole Loan Collection Account, any provision herein to
the contrary notwithstanding.
Each Serviced Whole Loan Collection Account shall be maintained as a
segregated account, separate and apart from any trust fund created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer; provided, however, that such Serviced Whole Loan Collection Account
may be a sub-account of the Collection Account but shall, for purposes of this
Agreement, be treated as a separate account. Each Serviced Whole Loan Collection
Account shall be established and maintained as an Eligible Account or as a
subaccount of an Eligible Account.
Upon receipt of any of the foregoing amounts described in clauses
(i), (ii), (v) and (vi) above with respect to each Serviced Whole Loan for so
long as it is a Specially Serviced Loan but is not a Serviced REO Loan, the
Special Servicer shall remit within one Business Day such amounts to the Master
Servicer for deposit into the applicable Serviced Whole Loan Collection Account
in accordance with the first paragraph of this Section 3.05(h), unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to a Serviced REO Property related to any Serviced Whole Loan shall
initially be deposited by the Special Servicer into the Serviced Whole Loan REO
Account and remitted to the Master Servicer for deposit into the applicable
Serviced Whole Loan Collection Account pursuant to Section 3.17(b). With respect
to any such amounts paid by check to the order of the Special Servicer, the
Special Servicer shall endorse without recourse or warranty such check to the
order of the Master Servicer and shall promptly deliver any such check to the
Master Servicer by overnight courier.
In making the foregoing deposits into the Serviced Whole Loan
Collection Account with respect to a Serviced Whole Loan that includes a
Serviced B Loan and the allocation of amounts received with respect to such
Whole Loan among the Mortgage Loan and any related Serviced Pari Passu Companion
Loans, if any, on the one hand, and the related Serviced B Loan, on the other
hand, if the Special Servicer, in connection with a workout of such Whole Loan,
has modified the terms thereof such that (i) the principal balance of the
related Notes are decreased, (ii) the Mortgage Rate or scheduled amortization
payments are reduced, (iii) payments of interest or principal on such Notes are
waived, reduced or deferred or (iv) any other adjustment is made to the economic
terms of such Whole Loan, all deposits to the Serviced Whole Loan Collection
Account with respect to such Whole Loan and allocations among the Mortgage Loan
and any related Serviced Pari Passu Companion Loans, if any, on the one hand,
and the related Serviced B Loan, on the other hand, pursuant to this Section
3.05(h) shall be made as though such workout did not occur, with the payment
terms of the Mortgage Loan and any related pari passu loans, if any, remaining
the same as they are on the date hereof, and the related Serviced B Loan shall
bear the effect of all waivers, reductions or deferrals of amounts due on such
Serviced Whole Loan and the related Notes attributable to such workout (up to
the amount of the amounts distributable in respect of the related Serviced B
Loan from amounts on deposit in the related Serviced Whole Loan Collection
Account) other than any waivers, reductions or deferrals of any Prepayment
Premiums, exit fees, extension fees, Default Interest or other charges or fees
payable by the Borrower resulting from such modification.
(i) Notwithstanding anything to the contrary contained herein with
respect to each Due Date and the Serviced Companion Loans, within one
Business Day of receipt from the Borrower, the Master Servicer shall remit,
from amounts on deposit in the applicable Serviced Whole Loan Collection
Account in accordance with Section 3.06(c)(i)(A), to the applicable Serviced
Companion Loan Noteholder by wire transfer in immediately available funds to
the account of such Serviced Companion Loan Noteholder or an agent therefor
appearing on the Serviced Companion Loan Noteholder Register on the related
date such amounts as are required to be remitted (or, if no such account so
appears or information relating thereto is not provided at least five (5)
Business Days prior to the date such amounts are required to be remitted, by
check sent by first-class mail to the address of such Serviced Companion Loan
Noteholder or its agent appearing on the Serviced Companion Loan Noteholder
Register) the portion of the applicable Serviced Whole Loan Remittance Amount
allocable to such Serviced Companion Loan Noteholder.
(j) Prior to the Servicer Remittance Date relating to any
Collection Period in which Excess Liquidation Proceeds are received, the
Trustee shall establish and maintain the Excess Liquidation Proceeds Account,
which may have one or more subaccounts, to be held in its own name, in trust
for the benefit of the Certificateholders and, with respect to each Serviced
Whole Loan, the related Serviced Companion Loan Noteholders. Each account
that constitutes an Excess Liquidation Proceeds Account shall be an Eligible
Account. On each Servicer Remittance Date, the Master Servicer shall withdraw
from the Collection Account or, if allocable to any Serviced Whole Loan, the
Master Servicer shall withdraw from the applicable Serviced Whole Loan
Collection Account, and remit to the Trustee (i) in the case of the Mortgage
Loans (other than the Serviced Whole Loans), for deposit in the Lower-Tier
Distribution Account (which the Trustee shall then deposit in the Excess
Liquidation Proceeds Account), and (ii) in the case of the Serviced Whole
Loans, for deposit in the Excess Liquidation Proceeds Account, all Excess
Liquidation Proceeds received during the Collection Period ending on the
Determination Date immediately prior to such Servicer Remittance Date which
are allocable to a Mortgage Loan or Serviced Whole Loan; provided that on the
Business Day prior to the final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account (after allocation to any related Serviced Companion Loan
as provided in Section 4.01(e)), for distribution on such Distribution Date,
any and all amounts then on deposit in the Excess Liquidation Proceeds
Account attributable to the Mortgage Loans.
(k) Funds in the Collection Account, the Serviced Whole Loan
Collection Account, the Distribution Accounts, the Interest Reserve Account,
the Excess Liquidation Proceeds Account and the REO Account may be invested
in Permitted Investments in accordance with the provisions of Section 3.07.
The Master Servicer shall give written notice to the Depositor, the
Trustee and the Special Servicer of the location and account number of the
Collection Account and, if applicable, the Serviced Whole Loan Collection
Accounts as of the Closing Date and shall notify the Depositor, the Special
Servicer and the Trustee, as applicable, in writing prior to any subsequent
change thereof. In addition, the Master Servicer shall provide notice to each
affected holder of a Serviced Companion Loan of the location and account number
of the relevant Serviced Whole Loan Collection Account as well as notice in
writing prior to any subsequent change thereof. The Trustee shall give written
notice to the Depositor, the Special Servicer and the Master Servicer of the
location and account number of the Interest Reserve Account and the Distribution
Accounts as of the Closing Date and shall notify the Depositor, the Special
Servicer and the Master Servicer, as applicable, in writing prior to any
subsequent change thereof.
Section 3.06 Permitted Withdrawals from the Collection Account, the
Serviced Whole Loan Collection Accounts and the Distribution Accounts; Trust
Ledger.
(a) [Reserved]
(b) The Master Servicer shall maintain a separate Trust Ledger
with respect to the Mortgage Loans on which it shall make ledger entries as
to amounts deposited (or credited) or withdrawn (or debited) with respect
thereto. On each Servicer Remittance Date, with respect to each Mortgage Loan
(other than any Mortgage Loan related to a Serviced Whole Loan unless
otherwise specified in clauses (i), (ii), (v), (vi), (xi), (xii), (xiii),
(xiv), (xviii), (xix) and (xxi) of this Section 3.06(b)), the Master Servicer
shall make withdrawals from amounts allocated thereto in the Collection
Account (and may debit the Trust Ledger) for the purposes listed below (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) on or before 1:00 P.M. (New York City time) on each Servicer
Remittance Date, to remit to the Trustee the amounts to be deposited into
the Lower-Tier Distribution Account (including any amount transferred from
the Serviced Whole Loan Collection Account in respect of each Mortgage
Loan that is part of a Serviced Whole Loan) (including without limitation
the aggregate of the Available Funds, Prepayment Premiums, Yield
Maintenance Charges and Excess Liquidation Proceeds) which the Trustee
shall then deposit into the Upper-Tier Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account, pursuant to
Sections 3.05(g), 3.05(f) and 3.05(j), respectively;
(ii) to pay (A) itself, unpaid Servicing Fees (subject to Section
3.12(a)); and the Special Servicer, unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of each Mortgage Loan,
Specially Serviced Loan and Serviced REO Loan (exclusive of each Mortgage
Loan or Serviced REO Loan included in a Serviced Whole Loan), as
applicable, the Master Servicer's or Special Servicer's, as applicable,
rights to payment of Servicing Fees and Special Servicing Fees,
Liquidation Fees and Workout Fees pursuant to this clause (ii)(A) with
respect to any Mortgage Loan, Specially Serviced Loan or Serviced REO Loan
(exclusive of each Mortgage Loan or Serviced REO Loan included in the
Serviced Whole Loan), as applicable, being limited to amounts received on
or in respect of such Mortgage Loan, Specially Serviced Loan or Serviced
REO Loan, as applicable (whether in the form of payments, Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds), that are allocable
as recovery of interest thereon, (B) each month to the Special Servicer
any unpaid Special Servicing Fees, Liquidation Fees and Workout Fees in
respect of each Specially Serviced Loan or Serviced REO Loan, as
applicable, remaining unpaid out of general collections on the Mortgage
Loans, Specially Serviced Loans and REO Properties, but in the case of
each Serviced Whole Loan, only to the extent that amounts on deposit in
the applicable Serviced Whole Loan Collection Account are insufficient
therefor and (C) each month to the Other Special Servicer the Trust's pro
rata portion (based on the related Mortgage Loan's Stated Principal
Balance) of any unpaid special servicing fees, liquidation fees and
workout fees in respect of the Non-Serviced Whole Loan remaining unpaid,
out of general collections on the Mortgage Loans, Specially Serviced Loans
and REO Properties;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to any Mortgage Loan), for xxxxxxxxxxxx X&X
Advances (other than Nonrecoverable Advances, which are reimbursable
pursuant to clause (v) below, and exclusive of the Mortgage Loans or
Serviced REO Loans included in the Serviced Whole Loans), the Master
Servicer's or the Trustee's right to reimbursement pursuant to this clause
(iii) being limited to amounts received which represent Late Collections
for the applicable Mortgage Loan (exclusive of the Mortgage Loan or
Serviced REO Loan included in the Serviced Whole Loan) during the
applicable period; provided, however, that if such P&I Advance becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance shall
thereafter be reimbursed from amounts recovered on the related Mortgage
Loan intended by the modified loan documents to be applied to reimburse
such Workout-Delayed Reimbursement Amount and then from the portion of
general collections and recoveries on or in respect of all of the Mortgage
Loans and REO Properties on deposit in the Collection Account from time to
time that represent collections or recoveries of principal to the extent
provided in clause (v) below;
(iv) to reimburse itself and the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
Serviced REO Property) (exclusive of the Mortgage Loans or Serviced REO
Loans included in the Serviced Whole Loans or any Serviced REO Property
securing any Serviced Whole Loan), for unreimbursed Property Advances, the
Master Servicer's, the Special Servicer's or the Trustee's respective
rights to receive payment pursuant to this clause (iv) with respect to any
Mortgage Loan or Serviced REO Property being limited to, as applicable,
payments received from the related Borrower which represent reimbursements
of such Property Advances, Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds and REO Proceeds with respect to the applicable
Mortgage Loan or Serviced REO Property; provided, however, that if such
Property Advance becomes a Workout-Delayed Reimbursement Amount, then such
Property Advance shall thereafter be reimbursed from amounts recovered on
the related Mortgage Loan intended by the modified loan documents to be
applied to reimburse such Workout-Delayed Reimbursement Amount and then
from the portion of general collections and recoveries on or in respect of
the Mortgage Loans and REO Properties on deposit in the Collection Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below;
(v) (A)(1) to reimburse itself, and the Special Servicer or the
Trustee, as applicable (in reverse of such order with respect to any
Mortgage Loan or Serviced REO Property), (x) with respect to
Nonrecoverable Advances, first, out of Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds and REO Proceeds received on the related
Mortgage Loan and related REO Properties, second, out of the principal
portion of general collections on the Mortgage Loans and REO Properties,
and then, to the extent the principal portion of general collections is
insufficient and with respect to such deficiency only, subject to any
election at its sole discretion to defer reimbursement thereof pursuant to
this Section 3.06(b), out of other collections on the Mortgage Loans and
REO Properties and (y) with respect to the Workout-Delayed Reimbursement
Amounts, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties, net of such amounts being reimbursed
pursuant to the preceding clause (x) above, but in the case of either
clause (x) or (y) above with respect to each Serviced Whole Loan, only to
the extent that amounts on deposit in the applicable Serviced Whole Loan
Collection Account are insufficient therefor after taking into account any
allocation set forth in the related Co-Lender Agreement and (2) to pay
itself or the Special Servicer out of general collections on the Mortgage
Loans and REO Properties, with respect to any Mortgage Loan or Serviced
REO Property any related earned Servicing Fee, Special Servicing Fee,
Liquidation Fee or Workout Fee, as applicable, that remained unpaid in
accordance with clause (ii) above following a Final Recovery Determination
made with respect to such Mortgage Loan or Serviced REO Property and the
deposit into the Collection Account of all amounts received in connection
therewith, but in the case of each Serviced Whole Loan, only to the extent
that amounts on deposit in the applicable Serviced Whole Loan Collection
Account are insufficient therefor and (B) to reimburse the Other Servicer,
the Other Special Servicer and the Other Trustee, as applicable, out of
general collections on the Mortgage Loans and REO Properties for the
Trust's pro rata portion (based on the Non-Serviced Mortgage Loan's Stated
Principal Balance) of nonrecoverable servicing advances previously made
with respect to the Non-Serviced Whole Loan;
(vi) (A) at such time as it reimburses itself and the Special
Servicer or the Trustee, as applicable (in reverse of such order with
respect to any Mortgage Loan or Serviced REO Property), for (1) any
xxxxxxxxxxxx X&X Advance (including any such P&I Advance that constitutes
a Workout-Delayed Reimbursement Amount) made with respect to a Mortgage
Loan pursuant to clause (iii) above, to pay itself or the Trustee, as
applicable, any Advance Interest Amounts accrued and payable thereon, (2)
any unreimbursed Property Advances (including any such Advance that
constitutes a Workout-Delayed Reimbursement Amount) made with respect to a
Mortgage Loan or Serviced REO Property pursuant to clause (iv) above, to
pay itself, the Special Servicer or the Trustee, as the case may be, any
Advance Interest Amounts accrued and payable thereon or (3) any
Nonrecoverable P&I Advances made with respect to a Mortgage Loan or
Serviced REO Property and any Nonrecoverable Property Advances made with
respect to a Mortgage Loan or Serviced REO Property or any Workout-Delayed
Reimbursement Amounts pursuant to clause (v) above, to pay itself, the
Special Servicer or the Trustee, as the case may be, any Advance Interest
Amounts accrued and payable thereon, in each case first from Penalty
Charges as provided in Section 3.12(d), but in the case of a Serviced
Whole Loan only to the extent that such Nonrecoverable Advance has been
reimbursed and only to the extent that amounts on deposit in the
applicable Serviced Whole Loan Collection Account are insufficient
therefor after taking into account any allocation set forth in the related
Co-Lender Agreement and (B) at such time as it reimburses the Other
Servicer, the Other Special Servicer and the Other Trustee, as applicable,
for any nonrecoverable servicing advances made with respect to the
Non-Serviced Whole Loan or the related REO Property pursuant to clause (v)
above, to pay the Other Servicer, the Other Special Servicer and the Other
Trustee, as applicable, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase
obligation of the applicable Mortgage Loan Seller under Section 6 of the
applicable Mortgage Loan Purchase Agreement, including, without
limitation, any expenses arising out of the enforcement of the repurchase
obligation, together with interest thereon at the Advance Rate, each such
Person's right to reimbursement pursuant to this clause (vii) with respect
to any Mortgage Loan (exclusive of any Mortgage Loan included in the
Serviced Whole Loan) being limited to that portion of the Repurchase Price
paid for such Mortgage Loan that represents such expense in accordance
with clause (e) of the definition of Repurchase Price;
(viii) to pay itself all Prepayment Interest Excesses on the
Mortgage Pool (exclusive of any Mortgage Loan or Serviced REO Loan
included in the Serviced Whole Loan) not required to be used pursuant to
Section 3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to the Trust Fund held in the Collection
Account as provided in Section 3.07(b) (but only to the extent of the net
investment earnings with respect to the Collection Account for any period
from any Distribution Date to the immediately succeeding Servicer
Remittance Date) and (2) Penalty Charges on the Mortgage Loans (other than
Specially Serviced Loans) (exclusive of any Mortgage Loan or Serviced REO
Loan included in the Serviced Whole Loan), (but only to the extent
collected from the related Borrower and to the extent that all amounts
then due and payable with respect to the related Mortgage Loan have been
paid and are not needed to pay interest on Advances in accordance with
Section 3.12 and/or Additional Trust Fund Expenses (other than Special
Servicing Fees, Workout Fees or Liquidation Fees); and (B) to pay the
Special Servicer, as additional servicing compensation in accordance with
Section 3.12(c), Penalty Charges on Specially Serviced Loans (exclusive of
any Mortgage Loan or Serviced REO Loan included in the Serviced Whole
Loan) (but only to the extent collected from the related Borrower and to
the extent that all amounts then due and payable with respect to the
related Specially Serviced Loan have been paid and are not needed to pay
interest on Advances, all in accordance with Section 3.12);
(x) [Reserved];
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) (and in the case of a Serviced Whole Loan only
to the extent that such amounts on deposit in the applicable Serviced
Whole Loan Collection Account are insufficient therefor after taking into
account any allocation set forth in the related Co-Lender Agreement);
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 11.07 (and in the case of
a Serviced Whole Loan only to the extent that such amounts on deposit in
the applicable Serviced Whole Loan Collection Account are insufficient
therefor after taking into account any allocation set forth in the related
Co-Lender Agreement but exclusive of amounts relating solely to the
related Serviced B Loan, if any);
(xiii) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer or the
Trustee is liable therefor pursuant to this Agreement, except to the
extent such amounts relate solely to the Serviced Whole Loans, in which
case, such amounts will be reimbursed first from the applicable Serviced
Whole Loan Collection Account(s) in accordance with Section 3.06(c) and
then out of general collections on the Mortgage Loans;
(xiv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund, except to the extent such amounts
relate solely to a Serviced Whole Loan, in which case, such amounts will
be reimbursed first, from the applicable Serviced Whole Loan Collection
Account(s) in accordance with Section 3.06(c) and then, out of general
collections on the Mortgage Loans;
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to each Mortgage Loan (exclusive of any Mortgage
Loan included in the Serviced Whole Loan), if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase relating to periods after the date of
purchase;
(xvi) [Reserved];
(xvii) [Reserved]
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.06(b) (and in the case of a Serviced Whole
Loan only to the extent that such amounts on deposit in the applicable
Serviced Whole Loan Collection Account are insufficient therefor after
taking into account any allocation set forth in the related Co-Lender
Agreement), it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation or requirement otherwise set forth in
this Agreement as to the time at which any Person is entitled to payment
or reimbursement of any amount or as to the funds from which any such
payment or reimbursement is permitted to be made;
(xix) to withdraw from the Collection Account any sums deposited
therein in error and pay such sums to the Persons entitled thereto
(including any amounts relating to a Mortgage Loan that is part of a
Serviced Whole Loan);
(xx) [Reserved];
(xxi) to pay from time to time to itself in accordance with Section
3.07(b) any interest or investment income earned on funds deposited in the
Collection Account;
(xxii) [Reserved];
(xxiii) to transfer Excess Liquidation Proceeds allocable to
Mortgage Loans to the Lower-Tier Distribution Account for deposit by the
Trustee into the Excess Liquidation Proceeds Account in accordance with
Section 3.05(j);
(xxiv) to pay itself, the Special Servicer or the related Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased or substituted (i.e., replaced) by such Person
pursuant to or as contemplated by this Agreement, all amounts received on
such Mortgage Loan subsequent to the date of purchase or substitution,
and, in the case of a substitution, with respect to the related Qualifying
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the third paragraph
of Section 2.03(f); and
(xxv) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall pay to the Special Servicer from the
Collection Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which the Special Servicer is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. The Special Servicer shall keep
and maintain separate accounting for each Specially Serviced Loan and Serviced
REO Loan and the related Serviced Companion Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Collection Account.
The Master Servicer shall keep and maintain separate accounting
records, on a Mortgage Loan by Mortgage Loan basis, reflecting amounts allocable
to each Mortgage Loan, and on a property-by-property basis when appropriate, for
the purpose of justifying any withdrawal, debit or credit from the Collection
Account or the Trust Ledger. Upon request, the Master Servicer shall provide to
the Trustee such records and any other information in the possession of the
Master Servicer to enable the Trustee to determine the amounts attributable to
the Lower-Tier REMIC and the Companion Loans.
The Master Servicer shall pay to the Trustee or the Special Servicer
from the Collection Account amounts permitted to be paid to the Trustee or the
Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or a certificate of a Servicing Officer, as
applicable, describing the item and amount to which such Person is entitled. The
Master Servicer may rely conclusively on any such certificate and shall have no
duty to recalculate the amounts stated therein.
The Trustee, the Special Servicer, the Master Servicer and the
Non-Serviced Mortgage Loan Service Providers (to the extent specified in Section
11.12) shall in all cases have a right prior to the Certificateholders to any
funds on deposit in the Collection Account from time to time for the
reimbursement or payment of the Servicing Compensation (including investment
income), Trustee Fees, Special Servicing Compensation, Advances, Advance
Interest Amounts, their respective indemnification payments (if any) pursuant to
Section 6.03, Section 8.05 or Section 11.12, their respective expenses hereunder
to the extent such fees and expenses are to be reimbursed or paid from amounts
on deposit in the Collection Account pursuant to this Agreement. In addition,
the Trustee, the Special Servicer and the Master Servicer shall in all cases
have a right prior to the Certificateholders to any funds on deposit in the
Collection Account from time to time for the reimbursement or payment of any
federal, state or local taxes imposed on any Trust REMIC.
Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans (or with respect to Property Advances, the Serviced Whole Loans)
deposited in the Collection Account (or the applicable Serviced Whole Loan
Collection Account) and available for distribution on the next Distribution
Date, the Master Servicer, the Special Servicer or the Trustee, each at its own
option and in its sole discretion, as applicable, instead of obtaining
reimbursement for the remaining amount of such Nonrecoverable Advance pursuant
to Section 3.06(b) or Section 3.06(c) immediately, may elect to refrain from
obtaining such reimbursement for such portion of the Nonrecoverable Advance
during the Collection Period ending on the then-current Determination Date for
successive one-month periods for a total period not to exceed 12 months
(provided, however, that any deferment over six months will require the consent
of the Controlling Class Representative). If the Master Servicer (or the Special
Servicer or the Trustee) makes such an election at its sole option and in its
sole discretion to defer reimbursement with respect to all or a portion of a
Nonrecoverable Advance (together with interest thereon), then such
Nonrecoverable Advance (together with interest thereon) or portion thereof shall
continue to be fully reimbursable in the subsequent Collection Period (subject,
again, to the same sole discretion to elect to defer; it is acknowledged that,
in such a subsequent period, such Nonrecoverable Advance shall again be payable
first from principal collections as described above prior to payment from other
collections). In connection with a potential election by the Master Servicer (or
the Special Servicer or the Trustee) to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one-month
Collection Period ending on the related Determination Date for any Distribution
Date, the Master Servicer (or the Special Servicer or the Trustee) shall further
be authorized to wait for principal collections on the Mortgage Loans and
Serviced Companion Loans to be received before making its determination of
whether to refrain from the reimbursement of a particular Nonrecoverable Advance
or portion thereof) until the end of such Collection Period; provided, however,
the Master Servicer shall give each Rating Agency at least 15 days notice prior
to any reimbursement to it of Nonrecoverable Advances from amounts in the
Collection Account allocable to interest on the Mortgage Loans unless (1) the
Master Servicer determines in its sole discretion that waiting 15 days after
such a notice could jeopardize the Master Servicer's ability to recover
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the Master Servicer that could affect or cause a
determination of whether any Advance is a Nonrecoverable Advance, whether to
defer reimbursement of a Nonrecoverable Advance or the determination in clause
(1) above, or (3) the Master Servicer has not timely received from the Trustee
information requested by the Master Servicer to consider in determining whether
to defer reimbursement of a Nonrecoverable Advance; provided that, if clause
(1), (2) or (3) apply, the Master Servicer shall give each Rating Agency notice
of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in
the Collection Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer shall have no
liability for any loss, liability or expense resulting from any notice provided
to each Rating Agency contemplated by the immediately preceding sentence.
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
Section 3.06(b) or to comply with the terms of this Section 3.06(b) and the
other provisions of this Agreement that apply once such an election, if any, has
been made. If the Master Servicer, the Special Servicer or the Trustee, as
applicable, determines, in its sole discretion, that it should recover the
Nonrecoverable Advances without deferral as described above, then the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall be entitled
to immediate reimbursement of Nonrecoverable Advances with interest thereon at
the Advance Rate from all amounts in the Collection Account for such
Distribution Date. Any such election by any such party to refrain from
reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or
portion thereof with respect to any one or more Collection Periods shall not
limit the accrual of interest at the Advance Rate on such Nonrecoverable Advance
for the period prior to the actual reimbursement of such Nonrecoverable Advance.
The Master Servicer's, the Special Servicer's or the Trustee's, as applicable,
agreement to defer reimbursement of such Nonrecoverable Advances as set forth
above is an accommodation to the Certificateholders and, as applicable, the
Serviced Companion Loan Noteholders and shall not be construed as an obligation
on the part of the Master Servicer, the Special Servicer or the Trustee, as
applicable, or a right of the Certificateholders or the Serviced Companion Loan
Noteholders. Nothing herein shall be deemed to create in the Certificateholders
and the Serviced Companion Loan Noteholders a right to prior payment of
distributions over the Master Servicer's, the Special Servicer's or the
Trustee's, as applicable, right to reimbursement for Advances (deferred or
otherwise). In all events, the decision to defer reimbursement or to seek
immediate reimbursement of Nonrecoverable Advances shall be deemed to be in
accordance with the Servicing Standard and neither the Master Servicer, the
Special Servicer, the Trustee nor the other parties to this Agreement shall have
any liability to one another or to any of the Certificateholders or any of the
Serviced Companion Loan Noteholders for any such election that such party makes
as contemplated by this Section 3.06(b) or for any losses, damages or other
adverse economic or other effects that may arise from such an election.
None of the Master Servicer, the Special Servicer or the Trustee
shall be permitted to reverse any other Person's determination that an Advance
is a Nonrecoverable Advance.
If the Master Servicer, the Special Servicer, or the Trustee or any
Non-Serviced Mortgage Loan Service Provider, as applicable, is reimbursed out of
general collections for any unreimbursed Advances that are determined to be
Nonrecoverable Advances (together with any interest accrued and payable
thereon), then (for purposes of calculating distributions on the Certificates)
such reimbursement and payment of interest shall be deemed to have been made:
first, out of the Principal Distribution Amount, which, but for its application
to reimburse a Nonrecoverable Advance and/or to pay interest thereon, would be
included in Available Funds for any subsequent Distribution Date, and second,
out of other amounts which, but for their application to reimburse a
Nonrecoverable Advance and/or to pay interest thereon, would be included in
Available Funds for any subsequent Distribution Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans, such reimbursement shall be made first, from
the principal collections available on the Mortgage Loans included in the same
Loan Group as such Mortgage Loan and if the principal collections in such Loan
Group are not sufficient to make such reimbursement in full, then from the
principal collections available in the other Loan Group (after giving effect to
any reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts related to such other Loan Group). To the extent the Principal
Distribution Amount for a Distribution Date is increased due to subsequent
recovery of an Advance previously determined to be Nonrecoverable, such increase
shall be allocated first to the principal collections in the Loan Group with
respect to which the Mortgage Loan as to which the related Nonrecoverable
Advance was made does not belong, and then to the Loan Group with respect to
which the Mortgage Loan as to which the related Nonrecoverable Advance was made
does belong.
To the extent a Workout-Delayed Reimbursement Amount with respect to
a Mortgage Loan is required to be reimbursed from the principal portion of the
general collections on the Mortgage Loans, such reimbursement shall be made
first, from the principal collections available on the Mortgage Loans included
in the same Loan Group as such Mortgage Loan (after giving effect to any
reimbursement of Nonrecoverable Advances related to such Loan Group) and, if the
principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts related to such other Loan
Group). To the extent the Principal Distribution Amount for a Distribution Date
is increased as set forth in preceding paragraph, such increase shall be
allocated first to the principal collections in the Loan Group with respect to
which the Mortgage Loan as to which the related Workout-Delayed Reimbursement
Amount was reimbursed does not belong, and then to the Loan Group with respect
to which the Mortgage Loan as to which the related Workout-Delayed Reimbursement
Amount was reimbursed does belong.
(c) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from the Serviced Whole Loan
Collection Accounts, for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make remittances each month as and when required in an
aggregate amount of immediately available funds equal to the allocable
portion of the applicable Serviced Whole Loan Remittance Amount to (A) the
related Serviced Companion Loan Noteholders in accordance with Section
3.05(i) and (B) the Collection Account for the benefit of the Trust in
accordance with Section 4.06(b), in each case in accordance with the
related Co-Lender Agreement (provided that Liquidation Proceeds relating
to the repurchase of any Serviced Companion Loan by the related seller
thereof shall be remitted solely to the holder of such Serviced Companion
Loan, as the case may be, and Liquidation Proceeds relating to the
repurchase of a Mortgage Loan related to a Serviced Whole Loan by the
related Mortgage Loan Seller shall be remitted solely to the Collection
Account; provided, however, that any Liquidation Proceeds related to a
sale pursuant to Section 3.18 hereof or pursuant to the related Co-Lender
Agreement of a Mortgage Loan included in a Serviced Whole Loan shall be
deposited directly into the Collection Account and applied solely to pay
expenses relating to that Mortgage Loan and to Available Funds;
(ii) to pay (A) to itself unpaid Servicing Fees and to the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees
in respect of such Serviced Whole Loan or related REO Loan, as applicable,
the Master Servicer's or the Special Servicer's, as applicable, rights to
payment of Servicing Fees, Special Servicing Fees, Liquidation Fees and
Workout Fees, as applicable, pursuant to this clause (ii)(A) with respect
to such Serviced Whole Loan or related REO Loan, as applicable, being
limited to amounts received on or in respect of such Serviced Whole Loan
(whether in the form of payments, Liquidation Proceeds, Insurance Proceeds
or Condemnation Proceeds), or such Serviced REO Loan (whether in the form
of REO Proceeds, Liquidation Proceeds, Insurance Proceeds or Condemnation
Proceeds), that are allocable as recovery of interest thereon and (B) to
the Special Servicer, each month to the extent not covered by clause
(ii)(A) above, any unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in respect of such Serviced Whole Loan or related REO Loan,
as applicable, remaining unpaid out of general collections in the
Collection Account as provided in Section 3.06(b)(ii);
(iii) to reimburse itself or the Trustee for xxxxxxxxxxxx X&X
Advances with respect to the applicable Mortgage Loan, the Master
Servicer's and the Trustee's right to reimbursement pursuant to this
clause (iii) being limited to amounts received in the applicable Serviced
Whole Loan Collection Account which represent Late Collections received in
respect of such Mortgage Loan or Serviced Companion Loan, as applicable
(as allocable thereto pursuant to the related Loan Documents and the
related Co-Lender Agreement), during the applicable period; provided,
however, that to the extent such amounts are insufficient to repay such
P&I Advances on any Mortgage Loan, such P&I Advances may be reimbursed
from collections on the related Serviced Whole Loan allocable to such B
Loan; provided, further, however, that if such P&I Advance on the
applicable Mortgage Loan becomes a Workout-Delayed Reimbursement Amount,
then such P&I Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Collection Account from time to time
that represent collections or recoveries of principal to the extent
provided in Section 3.06(b)(v) above;
(iv) to reimburse itself, the Trustee or the Special Servicer, as
applicable (in reverse of such order with respect to such Serviced Whole
Loan or Serviced REO Property), for unreimbursed Property Advances with
respect to such Serviced Whole Loan or related Serviced REO Property, the
Master Servicer's, the Trustee's or the Special Servicer's respective
rights to receive payment pursuant to this clause (iv) being limited to,
as applicable, related payments by the applicable Borrower with respect to
such Property Advance, Liquidation Proceeds, Insurance Proceeds and
Condemnation Proceeds and REO Proceeds with respect to such Serviced Whole
Loan; provided, that if such Property Advance becomes a Workout-Delayed
Reimbursement Amount, then such Property Advance shall thereafter be
reimbursed from the portion of general collections and recoveries on or in
respect of the Mortgage Loans and REO Properties on deposit in the
Collection Account from time to time that represent collections or
recoveries of principal to the extent provided in clause (v) below,
provided, further, that prior to any reimbursement under the immediately
preceding proviso, the Master Servicer shall collect the Workout-Delayed
Reimbursement Amount first, from collections on, and proceeds of the
applicable Serviced B Loan, if any, and second, in the case of a Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, to the extent such
Workout-Delayed Reimbursement Amount remains unreimbursed, on a pro rata
basis as between the related Mortgage Loan and any related Serviced Pari
Passu Companion Loan (based on their respective outstanding principal
balance);
(v) (A) to reimburse itself, the Special Servicer, the Trustee (in
reverse of such order with respect to such Serviced Whole Loan or related
REO Property), as applicable (x) with respect to Nonrecoverable Advances,
first, out of Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds and REO Proceeds received on the related Serviced Whole Loan and
REO Properties, and second, out of general collections in the Collection
Account as provided in Section 3.06(b) and (y) with respect to the Workout
Delayed Reimbursement Amounts, first, out of the principal portion of the
general collections on the Serviced Whole Loan and related REO Properties,
net of such amounts being reimbursed pursuant to the subclause first in
the preceding clause (x) above and second out of general collections in
the Collection Account as provided in Section 3.06(b); provided that in
the case of both clause (x) and clause (y) of this clause (v), prior to
making any reimbursement from general collections, such reimbursements
shall be made first, from collections on, and proceeds of the applicable
Serviced B Loan, if any, and then from collections on, and proceeds of the
related Mortgage Loan, or in the case of a Serviced Whole Loan with a
Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance) or (B) to pay
itself or the Special Servicer out of general collections on such Serviced
Whole Loan and related REO Properties, with respect to any Mortgage Loan
or Mortgage Loans or Serviced REO Property any related earned Servicing
Fee, Special Servicing Fee, Liquidation Fee or Workout Fee, as applicable,
that remained unpaid in accordance with clause (ii) above following a
Final Recovery Determination made with respect to such Serviced Whole Loan
or related REO Property and the deposit into the applicable Serviced Whole
Loan Collection Account of all amounts received in connection therewith,
such party's rights to reimbursement pursuant to this clause (v) with
respect to any such Nonrecoverable Advance that is a P&I Advance,
Servicing Fees, Special Servicing Fees, Liquidation Fees or Workout Fees,
as applicable, being limited (except to the extent set forth in Section
3.06(b)) to amounts on deposit in the applicable Serviced Whole Loan
Collection Account that were received in respect of the particular
Mortgage Loan (as allocable thereto pursuant to the related Loan Documents
and the related Co-Lender Agreement) in the related Serviced Whole Loan as
to which such Nonrecoverable Advance, Servicing Fees, Special Servicing
Fees, Liquidation Fees or Workout Fees, as applicable, were incurred
(provided, however, that to the extent such amounts are insufficient to
repay such Advances on any Mortgage Loan as to which there is a related
Serviced B Loan, such P&I Advances may be reimbursed from collections on
the related Serviced Whole Loan allocable to such B Loan);
(vi) at such time as it reimburses itself, the Special Servicer, the
Trustee, as applicable, for (A) any xxxxxxxxxxxx X&X Advance with respect
to the applicable Mortgage Loan (including any such Advance that
constitutes a Workout-Delayed Reimbursement Amount) to pay itself or the
Trustee, as applicable, any Advance Interest Amounts accrued and payable
thereon, (B) any unreimbursed Property Advances (including any such
Advance that constitutes a Workout-Delayed Reimbursement Amount) pursuant
to clause (iv) above, to pay itself, the Special Servicer or the Trustee,
as the case may be, any Advance Interest Amounts accrued and payable
thereon or (C) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself, the Special Servicer, the Trustee or any Serviced Companion
Loan Service Provider, as the case may be, any Advance Interest Amounts
accrued and payable thereon, such party's rights to reimbursement pursuant
to this clause (vi) with respect to any such interest on P&I Advances
being limited to amounts on deposit in the applicable Serviced Whole Loan
Collection Account that were received in respect of the particular
Mortgage Loan (as allocable thereto pursuant to the related Loan Documents
and the related Co-Lender Agreement) in the related Serviced Whole Loan as
to which such advance relates (provided, however, that any Mortgage Loan
as to which there is a related Serviced B Loan, such interest on P&I
Advances may be reimbursed from collections on the related Serviced Whole
Loan allocable to such B Loan);
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect with respect to the Mortgage
Loan included in such Serviced Whole Loan giving rise to a repurchase
obligation of the applicable Mortgage Loan Seller under Section 6 of the
applicable Mortgage Loan Purchase Agreement including, without limitation,
any expenses arising out of the enforcement of the repurchase obligation,
each such Person's right to reimbursement pursuant to this clause (vii)
with respect to such Serviced Whole Loan being limited to that portion of
the Repurchase Price paid for the related Mortgage Loan that represents
such expense in accordance with clause (e) of the definition of Repurchase
Price;
(viii) to pay itself all Prepayment Interest Excesses on any related
Mortgage Loan included in the Serviced Whole Loan not required to be used
pursuant to Section 3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to such Serviced Whole Loan held in the
applicable Serviced Whole Loan Collection Account as provided in Section
3.07(b) (but only to the extent of the net investment earnings with
respect to such Serviced Whole Loan Collection Account for any period from
any Distribution Date to the immediately succeeding Servicer Remittance
Date) and (2) the pro rata portion of any Penalty Charges, as allocated in
the related Co-Lender Agreement, on the related Mortgage Loan (other than
Specially Serviced Loans) and to pay to any Serviced Companion Loan
Service Provider, allocable to the related Serviced Companion Loan but
only to the extent collected from the related Borrower and to the extent
that all amounts then due and payable with respect to the Serviced Whole
Loans have been paid and are not needed to pay interest on Advances and/or
Additional Trust Fund Expenses in accordance with Section 3.12 and the
related Co-Lender Agreement; and (B) to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.12, the pro rata portion of any Penalty Charges, as allocated
in the related Co-Lender Agreement, on the related Mortgage Loan, and to
pay to any Serviced Companion Loan Service Provider the pro rata portion
of any Penalty Charges allocable to the related Serviced Companion Loan,
as allocated in the related Co-Lender Agreement, during the period it is a
Specially Serviced Loan (but only to the extent collected from the related
Borrower and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Loan have been paid and are not
needed to pay interest on Advances in accordance with Section 3.12 and/or
Additional Trust Fund Expenses and in accordance with the related
Co-Lender Agreement);
(x) to recoup any amounts deposited in such Serviced Whole Loan
Collection Account in error;
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Sections 6.03(a) or 6.03(b), to the extent that such amounts
relate to such Serviced Whole Loans;
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 11.07 to the extent
payable out of the Trust Fund as they relate to such Serviced Whole Loans;
(xiii) to pay out of general collections on such Serviced Whole Loan
and related Serviced REO Property any and all federal, state and local
taxes imposed on the Upper-Tier REMIC, the Lower-Tier REMIC or any of
their assets or transactions, together with all incidental costs and
expenses, in each case to the extent that neither the Master Servicer, the
Special Servicer nor the Trustee is liable therefor pursuant to this
Agreement and only to the extent that such amounts relate to the related
Mortgage Loan or to the Serviced Companion Loans (but only to the extent
that any Serviced Companion Loan is included in a REMIC);
(xiv) to reimburse the Trustee out of general collections on such
Serviced Whole Loan and related REO Properties for expenses incurred by
and reimbursable to it by the Trust Fund related to such Serviced Whole
Loan;
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to the Mortgage Loan included in such Serviced
Whole Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of purchase
relating to periods after the date of purchase;
(xvi) to deposit in the Interest Reserve Account the amounts with
respect to the Mortgage Loan included in such Serviced Whole Loan required
to be deposited in the Interest Reserve Account pursuant to Section
3.05(f);
(xvii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amounts relate to the Mortgage Loan included in such Serviced Whole Loan,
any amount specifically required to be paid to such Person at the expense
of the Trust Fund under any provision of this Agreement to which reference
is not made in any other clause of this Section 3.06(c), it being
acknowledged that this clause (xvii) shall not be construed to modify any
limitation or requirement otherwise set forth in this Agreement as to the
time at which any Person is entitled to payment or reimbursement of any
amount or as to the funds from which any such payment or reimbursement is
permitted to be made;
(xviii) to pay the related Mortgage Loan Seller with respect to the
Mortgage Loan included in such Serviced Whole Loan, if any, previously
purchased or substituted (i.e., replaced) by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Mortgage Loan
subsequent to the date of purchase or substitution, and, in the case of a
substitution, with respect to the related Qualifying Substitute Mortgage
Loan(s), all Monthly Payments due thereon during or prior to the month of
substitution, in accordance with the third paragraph of Section 2.03(f);
and
(xix) to clear and terminate such Serviced Whole Loan Collection
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from any Serviced Whole Loan Collection
Account. All withdrawals with respect to any Serviced Whole Loan shall be made
first from the applicable Serviced Whole Loan Collection Account and then, from
the Collection Account to the extent permitted by Section 3.06(b). Upon request,
the Master Servicer shall provide to the Trustee such records and any other
information in the possession of the Master Servicer to enable the Trustee to
determine the amounts attributable to the Lower-Tier REMIC and the Companion
Loans.
The Master Servicer shall pay to the Special Servicer from the
Serviced Whole Loan Collection Accounts amounts permitted to be paid to it
therefrom promptly upon receipt of a certificate of a Servicing Officer of such
Special Servicer describing the item and amount to which the Special Servicer is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Loan included in the Serviced Whole Loan and related REO Loan, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from any Serviced Whole Loan Collection Account.
Any permitted withdrawals under this Section 3.06(c) with respect to
reimbursement for advances or other amounts payable to a Serviced Companion Loan
Trustee shall, if applicable, also be deemed to be a permitted withdrawal for
similar amounts owed to the fiscal agent of the Serviced Companion Loan Trustee,
if any.
Notwithstanding anything to the contrary contained herein, with
respect to each Serviced Companion Loan, the Master Servicer shall withdraw from
the related Serviced Whole Loan Collection Account and remit to the related
Serviced Companion Loan Noteholders, within one Business Day of receipt thereof,
any amounts that represent Late Collections or Principal Prepayments on such
Serviced Companion Loan or any successor REO Loan with respect thereto, that are
received by the Master Servicer subsequent to 5:00 p.m. (New York City time) on
the related Due Date therefor (exclusive of any portion of such amount payable
or reimbursable to any third party in accordance with the related Co-Lender
Agreement or this Agreement), unless such amount would otherwise be included in
the monthly remittance to the holder of such Serviced Companion Loan for such
month.
In the event that the Master Servicer fails, as of 5:00 p.m. (New
York City time) on any Servicer Remittance Date or any other date a remittance
is required to be made, to remit to the Trustee (in respect of the related
Mortgage Loan) or the Serviced Companion Loan Noteholders (in respect of any
related Serviced Companion Loan) any amounts required to be so remitted
hereunder by such date (including any P&I Advance pursuant to Section 4.07 and
any Excess Liquidation Proceeds allocable to the Serviced Companion Loans
pursuant to Section 4.01(e)), the Master Servicer shall pay to the Trustee (in
respect of the Mortgage Loan) or the Serviced Companion Loan Noteholders (in
respect of the Serviced Companion Loan), for the account of the Trustee (in
respect of the Mortgage Loan) or the Serviced Companion Loan Noteholders (in
respect of the Serviced Companion Loans), interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from the time such payment was
required to be made (without regard to any grace period) until (but not
including) the date such late payment is received by the Trustee or the Serviced
Companion Loan Noteholders, as applicable.
(d) On each Servicer Remittance Date, all net income and gain
realized from investment of funds to which the Master Servicer or the Special
Servicer is entitled pursuant to Section 3.07(b) shall be subject to
withdrawal by the Master Servicer or the Special Servicer, as applicable.
(e) With respect to the Serviced Whole Loans, if amounts required
to pay the expenses allocable to any related Serviced Companion Loan exceed
amounts on deposit in the Serviced Whole Loan Collection Account and the
Master Servicer, the Special Servicer or the Trustee, as applicable, shall
have sought reimbursement from the Trust Fund with respect to such expenses
allocable to such Serviced Companion Loan, as applicable, the Master Servicer
shall seek (on behalf of the Trust Fund, subject to the related Co-Lender
Agreement) payment or reimbursement from the holder of the related Serviced B
Loan, if any, and then for the pro rata portion of such expenses allocable to
the Serviced Pari Passu Companion Loan from the related Serviced Companion
Loan Noteholder or, if such Serviced Companion Loan has been deposited into a
securitization, out of general collections in the collection account
established pursuant to the related Serviced Companion Loan Securitization
Agreement.
(f) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Mortgage Loan or any related Serviced
REO Property, then the Special Servicer shall, promptly when needed, transfer
such Loss of Value Payments (up to the remaining portion thereof) from the
Loss of Value Reserve Fund to the Master Servicer for deposit into the
Collection Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.06(b), for any Nonrecoverable
Advance made by such party with respect to such Mortgage Loan or any
related Serviced REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.06(b), or to reimburse the
Trust for the prior payment of, any expense relating to such Mortgage Loan
or any related Serviced REO Property that constitutes or, if not paid out
of such Loss of Value Payments, would constitute an Additional Trust Fund
Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Mortgage Loan or any related successor REO Loan;
(iv) following the occurrence of a liquidation event with respect to
such Mortgage Loan or any related Serviced REO Property and any related
transfers from the Loss of Value Reserve Fund with respect to the items
contemplated by the immediately preceding clauses (i)-(iii) as to such
Mortgage Loan, to cover the items contemplated by the immediately
preceding clauses (i)-(iii) in respect of any other Mortgage Loan or
Serviced REO Loan; and
(v) On the final Distribution Date after all distributions have been
made as set forth in clause (i) through (iv) above, to each Mortgage Loan
Seller, its pro rata share, based on the amount that it contributed, net
of any amount contributed by such Mortgage Loan Seller that was used
pursuant to clauses (i)-(iii) to offset any Realized Losses, Additional
Trust Fund Expenses or any Nonrecoverable Advances incurred with respect
to the Mortgage Loan related to such contribution.
Any Loss of Value Payments transferred to the Collection Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Mortgage Loan or any successor
REO Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Collection Account
pursuant to clause (iv) of the prior paragraph shall, except for purposes of
Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds received
by the Trust in respect of the Mortgage Loan or REO Loan for which such Loss of
Value Payments are being transferred to the Collection Account to cover an item
contemplated by clauses (i)-(iv) of the prior paragraph.
(g) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes (the order
set forth below shall not indicate any order of priority):
(i) to make deposits of the Lower-Tier Distribution Amount and the
amount of any Prepayment Premium and Yield Maintenance Charges
distributable pursuant to Section 4.01(a)(ii) in the Upper Tier
Distribution Account, and to make distributions on the Class LR
Certificates pursuant to Section 4.01(a)(ii);
(ii) to pay to itself accrued but unpaid Trustee Fees;
(iii) to pay itself an amount equal to all net income and gain
realized from investment of funds in the Distribution Account pursuant to
Section 3.07(b);
(iv) to pay to itself or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Sections 8.05(b) and 8.05(c);
(v) to recoup any amounts deposited in the Lower-Tier Distribution
Account in error; and
(vi) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(h) The Trustee, may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable;
(ii) to recoup any amounts deposited in the-Upper Tier Distribution
Account in error; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
Section 3.07 Investment of Funds in the Collection Account, the
Serviced Whole Loan Collection Accounts, Distribution Account REO Account, the
Lock-Box Accounts, the Cash Collateral Accounts and the Reserve Accounts. (a)
The Master Servicer (or with respect to any REO Account, the Special Servicer or
with respect to the Distribution Account, the Trustee) may direct any depository
institution maintaining the Collection Account, any Serviced Whole Loan
Collection Account, any Borrower Accounts (as defined below and subject to the
second succeeding sentence), any REO Account and the Distribution Account (each,
for purposes of this Section 3.07, an "Investment Account"), to invest the funds
in such Investment Account in one or more Permitted Investments that bear
interest or are sold at a discount, and that mature, unless payable on demand,
no later than the Business Day preceding the date on which such funds are
required to be withdrawn from such Investment Account pursuant to this
Agreement. Any investment of funds on deposit in an Investment Account by the
Master Servicer, the Special Servicer or the Trustee shall be documented in
writing and shall provide evidence that such investment is a Permitted
Investment which matures at or prior to the time required hereby or is payable
on demand. In the case of any Escrow Account, Lock-Box Account, Cash Collateral
Account or Reserve Account (the "Borrower Accounts"), the Master Servicer shall
act upon the written request of the related Borrower or Manager to the extent
that the Master Servicer is required to do so under the terms of the respective
Loan Documents, provided that in the absence of appropriate written instructions
from the related Borrower or Manager meeting the requirements of this Section
3.07, the Master Servicer shall have no obligation to, but will be entitled to,
direct the investment of funds in such accounts in Permitted Investments. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds in an Investment Account shall be made in the name of
the Trustee (in its capacity as such) or in the name of a nominee of the
Trustee. The Trustee shall have sole control (except with respect to investment
direction which shall be in the control of the Master Servicer or the Special
Servicer, with respect to any REO Accounts, as an independent contractor to the
Trust Fund) over each such investment and any certificate or other instrument
evidencing any such investment shall be delivered directly to the Trustee or its
agent (which shall initially be the Master Servicer), together with any document
of transfer, if any, necessary to transfer title to such investment to the
Trustee or its nominee. The Trustee shall have no responsibility or liability
with respect to the investment directions of the Master Servicer, the Special
Servicer, any Borrower or Manager or any losses resulting therefrom, whether
from Permitted Investments or otherwise. The Master Servicer shall have no
responsibility or liability with respect to the investment directions of the
Special Servicer, any Borrower or Manager or any losses resulting therefrom,
whether from Permitted Investments or otherwise. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Master Servicer (or the Special Servicer or the Trustee,
as applicable) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer (or the Special Servicer or the
Trustee, as applicable) that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on
deposit in the related Investment Account.
(b) All income and gain realized from investment of funds
deposited in any Investment Account shall be for the benefit of the Master
Servicer (except with respect to the investment of funds deposited in (i) any
Borrower Account, which shall be for the benefit of the related Borrower to
the extent required under the Mortgage Loan or applicable law, (ii) any REO
Account, which shall be for the benefit of the Special Servicer or (iii) the
Distribution Account, which shall be for the benefit of the Trustee) and, if
held in the Collection Account, any Serviced Whole Loan Collection Account,
REO Account or Distribution Account shall be subject to withdrawal by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in
accordance with Section 3.06 or Section 3.17(b), as applicable. The Master
Servicer, or with respect to any REO Account, the Special Servicer, or with
respect to the Distribution Accounts, the Trustee, shall deposit from its own
funds into the Collection Account, the applicable Serviced Whole Loan
Collection Account, any REO Account or the Distribution Accounts, as
applicable, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Master Servicer, the Special Servicer or the Trustee, as applicable, may
reduce the amount of such payment to the extent it forgoes any investment
income in such Investment Account otherwise payable to it. The Master
Servicer shall also deposit from its own funds in any Borrower Account
immediately upon realization of such loss the amount of any loss incurred in
respect of Permitted Investments, except to the extent that amounts are
invested at the direction of or for the benefit of the Borrower under the
terms of the Mortgage Loan, Serviced Whole Loan or applicable law.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under
any Permitted Investment, the Trustee may, and upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any
Class shall, take such action as may be appropriate to enforce such payment
or performance, including the institution and prosecution of appropriate
proceedings. In the event the Trustee takes any such action, (i) the Master
Servicer, if such Permitted Investment was for the benefit of the Master
Servicer, or (ii) the Special Servicer, if such Permitted Investment was for
the benefit of the Special Servicer, shall pay or reimburse the Trustee for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Trustee in connection therewith.
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage. (a) In the case of each Mortgage Loan or
Serviced Whole Loan, as applicable (but excluding any REO Loan and the
Non-Serviced Mortgage Loan) the Master Servicer shall use reasonable efforts
consistent with the Servicing Standard to cause the related Borrower to maintain
(including identifying the extent to which such Borrower is maintaining
insurance coverage and, if such Borrower does not so maintain, the Master
Servicer will itself cause to be maintained with Qualified Insurers) for the
related Mortgaged Property (x) except where the Loan Documents permit a Borrower
to rely on self-insurance provided by a tenant, a fire and casualty extended
coverage insurance policy, which does not provide for reduction due to
depreciation, in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or Serviced Whole
Loan, as applicable, or (ii) the Stated Principal Balance of such Mortgage Loan
or Serviced Whole Loan, as applicable, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause and (y) all other
insurance coverage (including, but not limited to, coverage for acts of
terrorism) as is required, subject to applicable law, under the related Loan
Documents; provided, however, that:
(i) the Master Servicer shall not be required to maintain any
earthquake or environmental insurance policy on any Mortgaged Property
unless (x) such insurance policy was in effect at the time of the
origination of the related Mortgage Loan or Serviced Whole Loan, as
applicable, or (y) was required by the related Loan Documents and is
available at commercially reasonable rates (and if the Master Servicer
does not cause the Borrower to maintain or itself maintain such earthquake
or environmental insurance policy on any Mortgaged Property, the Special
Servicer shall have the right, but not the duty, to obtain (in accordance
with the Servicing Standard), at the Trust's expense, earthquake or
environmental insurance on any Serviced REO Property so long as such
insurance is available at commercially reasonable rates), provided that
the Master Servicer shall require the related Borrower to maintain such
insurance in the amount, in the case of clause (x), maintained at
origination, and in the case of clause (y), required by such Mortgage Loan
or Serviced Whole Loan, in each case, to the extent such amounts are
available at commercially reasonable rates;
(ii) if and to the extent that any Mortgage Loan Document grants the
lender thereunder any discretion (by way of consent, approval or
otherwise) as to the insurance provider from whom the related Borrower is
to obtain the requisite insurance coverage, the Master Servicer shall (to
the extent consistent with the Servicing Standard) require the related
Borrower to obtain the requisite insurance coverage from Qualified
Insurers;
(iii) the Master Servicer shall not have any obligation beyond using
its reasonable efforts consistent with the Servicing Standard to cause any
Borrower to maintain the insurance required to be maintained under the
Loan Documents; provided, however, that this clause shall not limit the
Master Servicer's obligation to obtain and maintain a force-placed
insurance policy, as provided herein;
(iv) except as provided below (including under clause (v) below), in
no event shall the Master Servicer be required to cause the Borrower to
maintain, or itself obtain, insurance coverage that the Master Servicer
has determined is either (A) not available at any rate or (B) not
available at commercially reasonable rates and the related hazards are not
at the time commonly insured against for properties similar to the related
Mortgaged Property and located in or around the region in which the
related Mortgaged Property is located (in each case, as determined by the
Master Servicer in accordance with the Servicing Standard, not less
frequently than annually, to the extent consistent with the Servicing
Standard (but need not be made more frequently) at the approximate date on
which the Master Servicer receives notice of the renewal, replacement or
cancellation of coverage, and the Master Servicer will be entitled to rely
on insurance consultants, retained at its own expense, in making such
determination);
(v) to the extent that the Master Servicer itself is required to
maintain insurance that the Borrower does not maintain, the Master
Servicer will not be required to maintain insurance other than what is
available to the Master Servicer on a force-placed basis at commercially
reasonable rates, and only to the extent the Trustee as lender has an
insurable interest thereon; and
(vi) any explicit terrorism insurance requirements contained in the
related Loan Documents shall be enforced by the Master Servicer in
accordance with the Servicing Standard, unless the Special Servicer and
the Directing Certificateholder have consented to a waiver (including a
waiver to permit the Master Servicer to accept insurance that does not
comply with specific requirements contained in the Loan Documents) in
writing of that provision in accordance with the Servicing Standard;
provided, however, that any determination by the Master Servicer that a
particular type of insurance is not available at commercially reasonable rates
shall be subject to the approval of the Special Servicer and the Directing
Certificateholder; provided, further, that the Master Servicer will not be
permitted to obtain insurance on a force-placed basis with respect to terrorism
insurance without the consent of the Special Servicer and the Directing
Certificateholder and provided, further, that while an approval provided for
under Section 3.08 is pending, the Master Servicer will not be in default or
liable for any loss.
Notwithstanding the limitation set forth in clause (iv) above, the
Master Servicer must, prior to availing itself of any limitation described in
that clause with respect to any Mortgage Loan or Serviced Whole Loan, as
applicable, obtain the approval or disapproval of the Special Servicer and the
Directing Certificateholder (and, in connection therewith, the Special Servicer
will be required to comply with any applicable provisions of Sections 3.26 and
3.30 or 3.32, as applicable). The Master Servicer will be entitled to rely on
the determination of the Special Servicer made in connection with such approval
or disapproval. The Special Servicer shall decide with the consent of the
Directing Certificateholder whether to withhold or grant such approval in
accordance with the Servicing Standard. If any such approval has not been
expressly denied within 10 Business Days (or with respect to any Serviced Whole
Loan, such period of time as provided in Section 3.32 if any) of the Special
Servicer's and the Directing Certificateholder's receipt from the Master
Servicer of the Master Servicer's determination and analysis and all information
reasonably requested by the Special Servicer or the Directing Certificateholder
and reasonably available to the Master Servicer in order to make an informed
decision, such approval shall be deemed to have been granted.
The Master Servicer shall notify the Special Servicer, the Trustee
and the Directing Certificateholder if the Master Servicer determines in
accordance with the Servicing Standard that a Borrower has failed to maintain
insurance required under the Loan Documents and such failure materially and
adversely affects the interests of the Certificateholders or if the Borrower has
notified the Master Servicer in writing that the Borrower does not intend to
maintain such insurance and that the Master Servicer has determined in
accordance with the Servicing Standard that such failure materially and
adversely affects the interests of the Certificateholders.
Subject to Section 3.17(a), with respect to each Serviced REO
Property, the Special Servicer shall use reasonable efforts, consistent with the
Servicing Standard, to maintain (subject to the right of the Special Servicer to
direct the Master Servicer to make a Property Advance for the costs associated
with coverage that the Special Servicer determines to maintain, in which case
the Master Servicer shall make such Property Advance) with Qualified Insurers,
(a) a fire and casualty extended coverage insurance policy, which does not
provide for reduction due to depreciation, in an amount that is at least equal
to the lesser of the full replacement value of the Mortgaged Property or the
Stated Principal Balance of the Mortgage Loan or the Serviced Whole Loan, as
applicable (or such greater amount of coverage required by the related Loan
Documents (unless such amount is not available or the Directing
Certificateholder has consented to a lower amount)), but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause, (b) a
comprehensive general liability insurance policy with coverage comparable to
that which would be required under prudent lending requirements and in an amount
not less than $1.0 million per occurrence, and (c) to the extent consistent with
the Servicing Standard, a business interruption or rental loss insurance
covering revenues or rents for a period of at least 12 months; provided,
however, that the Special Servicer shall not be required in any event to
maintain or obtain insurance coverage described in this paragraph beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard. With respect to each Specially Serviced Loan (other than an
REO Loan) the Special Servicer shall, in accordance with the Servicing Standard,
be responsible for pursuing any enforcement action against the related Borrower
with respect to such Borrower's failure to maintain the insurance described in
the first paragraph of this Section 3.08(a); provided, that if such Borrower
fails to maintain such insurance, the Special Servicer may direct the Master
Servicer to cause such coverage to be maintained in accordance with and subject
to the other provisions of this Section 3.08, to the extent that the identified
coverage is available under the Master Servicer's existing force-placed policy.
All such insurance policies maintained as described above shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (on behalf of the Trustee on behalf of
Certificateholders and, with respect to a Serviced Whole Loan the related
Serviced Companion Loan Noteholders), or shall name the Trustee as the insured,
with loss payable to the Special Servicer on behalf of the Trustee (on behalf of
Certificateholders and, with respect to a Serviced Whole Loan the related
Serviced Companion Loan Noteholders) (in the case of insurance maintained in
respect of a Serviced REO Property). Any amounts collected by the Master
Servicer or Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the related Mortgaged Property or
Serviced REO Property or amounts to be released to the related Borrower, in each
case in accordance with the Servicing Standard) shall be deposited in the
Collection Account (or, in the case of the Serviced Whole Loans, in the
applicable Serviced Whole Loan Collection Account), subject to withdrawal
pursuant to Section 3.06, in the case of amounts received in respect of a
Mortgage Loan or Serviced Whole Loan, or in the applicable REO Account of the
Special Servicer, subject to withdrawal pursuant to Section 3.17, in the case of
amounts received in respect of a Serviced REO Property. Any cost incurred by the
Master Servicer or the Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including calculating monthly distributions to
Certificateholders or Serviced Companion Loan Noteholders, be added to the
Stated Principal Balance of the related Mortgage Loan or the Serviced Whole
Loan, notwithstanding that the terms of such Mortgage Loan or Serviced Whole
Loan so permit; provided, however, that this sentence shall not limit the rights
of the Master Servicer or Special Servicer on behalf of the Trust Fund to
enforce any obligations of the related Borrower under such Mortgage Loan or
Serviced Whole Loan. Any costs incurred by the Master Servicer in maintaining
any such insurance policies in respect of the Mortgage Loans or Specially
Serviced Loans (other than REO Properties) (i) if the Borrower defaults on its
obligation to do so, shall be advanced by the Master Servicer as a Property
Advance and will be charged to the related Borrower and (ii) shall not, for
purposes of calculating monthly distributions to Certificateholders, be added to
the Stated Principal Balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit. Any cost incurred by the Special
Servicer in maintaining any such Insurance Policies with respect to REO
Properties shall be an expense of the Trust Fund (and in the case of the
Serviced Whole Loans, first, of the related Serviced B Loan, if any, and second,
to the extent such cost remains unpaid, of the related Mortgage Loan, or in the
case of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a
pro rata basis as between the related Mortgage Loan and any related Serviced
Pari Passu Companion Loan (based on their respective outstanding principal
balance)) payable out of the related REO Account (or Serviced Whole Loan REO
Account, as applicable) or, if the amount on deposit therein is insufficient
therefore, advanced by the Master Servicer as a Property Advance.
(b) If either (x) the Master Servicer or Special Servicer obtains
and maintains, or causes to be obtained and maintained, a blanket policy or
master force-placed policy insuring against hazard losses on all of the
Mortgage Loans (other than the Non-Serviced Mortgage Loan), Serviced Whole
Loans or Serviced REO Properties, as applicable, then, to the extent such
policy (i) is obtained from a Qualified Insurer, and (ii) provides protection
equivalent to the individual policies otherwise required or (y) the Master
Servicer or Special Servicer has long-term unsecured debt obligations that
are rated not lower than "A" by Fitch and S&P, and the Master Servicer or
Special Servicer self-insures for its obligation to maintain the individual
policies otherwise required, then the Master Servicer or the Special Servicer
shall conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the related Mortgaged Properties or Serviced
REO Properties, as applicable. Such a blanket or master force-placed policy
may contain a deductible clause (not in excess of a customary amount), in
which case the Master Servicer or Special Servicer, as the case may be, that
maintains such policy shall, if there shall not have been maintained on any
Mortgaged Property or Serviced REO Property thereunder a hazard insurance
policy complying with the requirements of Section 3.08(a), and there shall
have been one or more losses that would have been covered by such an
individual policy, promptly deposit into the Collection Account (or, in the
case of a Serviced Whole Loan, in the related Serviced Whole Loan Collection
Account), from its own funds, the amount not otherwise payable under the
blanket or master force-placed policy in connection with such loss or losses
because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan
or the related Serviced Whole Loan, as applicable (or, in the absence of any
such deductible limitation, the deductible limitation for an individual
policy which is consistent with the Servicing Standard). The Master Servicer
and Special Servicer shall prepare and present, on behalf of itself, the
Trustee, Certificateholders and, if applicable the Serviced Companion Loan
Noteholders, claims under any such blanket or master force-placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy. If the Master Servicer or Special Servicer, as applicable, causes any
Mortgaged Property or Serviced REO Property to be covered by such
"force-placed" insurance policy, the incremental costs of such insurance
applicable to such Mortgaged Property or Serviced REO Property (i.e., other
than any minimum or standby premium payable for such policy whether or not
any Mortgaged Property or Serviced REO Property is covered thereby) shall be
paid as a Property Advance.
(c) With respect to each Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan, as applicable, that is
subject to an Environmental Insurance Policy, if the Master Servicer has
actual knowledge of any event giving rise to a claim under an Environmental
Insurance Policy, the Master Servicer shall notify the Special Servicer to
such effect and the Master Servicer shall take reasonable actions as are in
accordance with the Servicing Standard and the terms and conditions of such
Environmental Insurance Policy to make a claim thereunder and achieve the
payment of all amounts to which the Trust is entitled thereunder. With
respect to each Specially Serviced Loan and Serviced REO Property that is
subject to an Environmental Insurance Policy, if the Special Servicer has
actual knowledge of any event giving rise to a claim under an Environmental
Insurance Policy, such Special Servicer shall take reasonable actions as are
in accordance with the Servicing Standard and the terms and conditions of
such Environmental Insurance Policy to make a claim thereunder and achieve
the payment of all amounts to which the Trust, on behalf of the
Certificateholders and, if applicable, the Serviced Companion Loan
Noteholders (giving due regard to the junior nature of the related B Loan, if
any), is entitled thereunder. Any legal fees or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any
claim under an Environmental Insurance Policy described above (whether by the
Master Servicer or Special Servicer) shall be paid by, and reimbursable to,
the Master Servicer as a Property Advance.
(d) The Master Servicer and Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer,
at all times during the term of this Agreement during which Specially
Serviced Loans and/or Serviced REO Properties as to which it is the Special
Servicer are included in the Trust Fund) keep in force with a Qualified
Insurer, a fidelity bond in such form and amount as are consistent with the
Servicing Standard. The Master Servicer or Special Servicer shall be deemed
to have complied with the foregoing provision if an Affiliate thereof has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Master Servicer or Special
Servicer, as the case may be. Such fidelity bond shall provide that it may
not be canceled without ten days' prior written notice to the Trustee. So
long as the long-term unsecured debt obligations of the Master Servicer (or
its corporate parent if such insurance is guaranteed by its parent) or the
Special Servicer, as applicable, are rated not lower than "A" by Fitch and
S&P, the Master Servicer or the Special Servicer, as applicable, may
self-insure with respect to the fidelity bond coverage required as described
above, in which case it shall not be required to maintain an insurance policy
with respect to such coverage.
The Master Servicer and Special Servicer shall at all times during
the term of this Agreement (or, in the case of the Special Servicer, at all
times during the term of this Agreement during which Specially Serviced Loans
and/or Serviced REO Properties exist as part of the Trust Fund) also keep in
force with a Qualified Insurer a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with their servicing obligations hereunder, which policy or policies
shall be in such form and amount as are consistent with the Servicing Standard.
The Master Servicer or the Special Servicer shall be deemed to have complied
with the foregoing provisions if an Affiliate thereof has such insurance and, by
the terms of such policy or policies, the coverage afforded thereunder extends
to the Master Servicer or Special Servicer, as the case may be. Any such errors
and omissions policy shall provide that it may not be canceled without ten days'
prior written notice to the Trustee. So long as the long-term unsecured debt
obligations of the Master Servicer (or its corporate parent if such insurance is
guaranteed by its parent) or the Special Servicer, as applicable, are rated not
lower than "A" by S&P and Fitch, the Master Servicer or the Special Servicer, as
applicable, may self-insure with respect to the errors and omissions coverage
required as described above, in which case it shall not be required to maintain
an insurance policy with respect to such coverage.
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions. (a) If any Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan contains a provision in the
nature of a "due-on-sale" clause (including, without limitation, sales or
transfers of Mortgaged Properties (in full or part) or the sale, transfer,
pledge or hypothecation of direct or indirect interests in the Borrower or its
owners), which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole Loan will (or
may at the mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property
(including, without limitation, the sale, transfer, pledge or
hypothecation of direct or indirect interests in the Borrower or its
owners),
(ii) provides that such Mortgage Loan or Serviced Whole Loan may not
be assumed without the consent of the related mortgagee in connection with
any such sale or other transfer, or
(iii) provides that such Mortgage Loan or Serviced Whole Loan may be
assumed or transferred without the consent of the mortgagee, provided
certain conditions set forth in the Loan Documents are satisfied,
then, for so long as such Mortgage Loan is included in the Trust Fund, subject
to the rights of the Directing Certificateholder, the Master Servicer (with
respect to each Mortgage Loan other than a Specially Serviced Loan) or the
Special Servicer (with respect to any Specially Serviced Loan), as applicable,
on behalf of the Trust Fund, shall not be required to enforce any such
due-on-sale clauses and in connection therewith shall not be required to (x)
accelerate payments thereon or (y) withhold its consent to such an assumption if
(1) such provision is not exercisable under applicable law or the enforcement of
such provision is reasonably likely to result in meritorious legal action by the
Borrower or (2) the Master Servicer or the Special Servicer, as applicable,
determines, in accordance with the Servicing Standard, that granting such
consent would be likely to result in a greater recovery, on a present value
basis (discounting at the related Mortgage Rate), than would enforcement of such
clause. If the Master Servicer or the Special Servicer, as applicable,
determines that (A) granting such consent would be likely to result in a greater
recovery, (B) such provision is not legally enforceable, or (C) that the
conditions described in clause (iii) above relating to the assumption or
transfer of Mortgage Loan or Serviced Whole Loan have been satisfied, the Master
Servicer or the Special Servicer, as applicable, is authorized to take or enter
into an assumption agreement from or with the Person to whom the related
Mortgaged Property has been or is about to be conveyed, and to release the
original Borrower from liability upon the Mortgage Loan and substitute the new
Borrower as obligor thereon, provided, that (a) the credit status of the
prospective new Borrower is in compliance with the Master Servicer's or the
Special Servicer's, as applicable, regular commercial mortgage origination or
Servicing Standard and criteria and the terms of the related Mortgage and (b)
the Master Servicer or the Special Servicer, as applicable, has received written
confirmation that such assumption or substitution would not, in and of itself,
cause a downgrade, qualification or withdrawal of the then-current ratings
assigned to the Certificates from (i) S&P with respect to any Mortgage Loan
(together with any Mortgage Loans cross-collateralized with such Mortgage Loan)
that (A) represents more than 5% of the then-current aggregate Stated Principal
Balance of the Mortgage Loans (taking into account for the purposes of this
calculation, in the case of any such Mortgage Loan with respect to which the
related Borrower or its Affiliate is a Borrower with respect to one or more
other Mortgage Loans, such other Mortgage Loans), (B) has a Stated Principal
Balance that is more than $35,000,000 or (C) is among the ten largest Mortgage
Loans in the Trust Fund (based on Stated Principal Balance), or (ii) Fitch with
respect to any Mortgage Loan that (together with any Mortgage Loans cross
collateralized with such Mortgage Loan) is one of the then current top 10 loans
(by Stated Principal Balance) in the pool, and in connection with the request
for such Rating Agency Confirmation, upon request the Master Servicer or the
Special Servicer, as applicable, shall prepare and deliver to Fitch a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. In connection with
each such assumption or substitution entered into by the Special Servicer, the
Special Servicer shall give prior notice thereof to the Master Servicer. The
Special Servicer shall notify the Trustee and the Directing Certificateholder
that any such assumption or substitution agreement has been completed by
forwarding to the Custodian (with a copy to the Master Servicer, if applicable,
and the Directing Certificateholder) the original copy of such agreement, which
copies shall be added to the related Mortgage File and shall, for all purposes,
be considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. To the extent not
precluded by the Mortgage Loan documents, the Special Servicer shall not approve
an assumption or substitution without requiring the related Borrower to pay any
fees owed to the Rating Agencies associated with the approval of such assumption
or substitution. However, in the event that the related Borrower is required but
fails to pay such fees, such fees shall be an expense of the Trust Fund and, in
the case of any Serviced Whole Loan, such expense shall first be allocated in
accordance with the related Co-Lender Agreement or, in absence of such
allocation, (i) first to the related Serviced B Loan (up to the full Stated
Principal Balance thereof), if any, and, then, (ii) to the related Mortgage
Loan, or in the case of a Serviced Whole Loan with a Serviced Pari Passu
Companion Loan, on a pro rata basis as between the related Mortgage Loan and any
related Serviced Pari Passu Companion Loan (based on their respective
outstanding principal balance).
Notwithstanding anything in the foregoing paragraph to the contrary, the
Special Servicer will have the right to consent to any assumption of a Mortgage
Loan or Serviced Whole Loan that is not a Specially Serviced Mortgage Loan;
provided, that the Special Servicer shall obtain the consent of the Directing
Certificateholder to any such assumption or substitution of any Mortgage Loan,
Serviced Whole Loan or Specially Serviced Loan, to the extent described in
Sections 3.29 hereof.
(b) If any Mortgage Loan (other than the Non-Serviced Mortgage Loan)
or Serviced Whole Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole Loan shall
(or may at the mortgagee's option) become due and payable upon the
creation of any lien or other encumbrance on the related Mortgaged
Property or the ownership interest of the borrower (including, unless
specifically permitted, any mezzanine financing of the Borrower or the
Mortgaged Property or any sale or transfer of preferred equity in the
Borrower or its owners),
(ii) requires the consent of the related mortgagee to the creation
of any such lien or other encumbrance on the related Mortgaged Property
(including, without limitation, any mezzanine financing of the Borrower or
the Mortgaged Property or any sale or transfer of preferred equity in the
Borrower or its owners), or
(iii) provides that such Mortgaged Property may be further
encumbered without the consent of the mortgagee (including, without
limitation, any mezzanine financing of the Borrower or the Mortgaged
Property or any sale or transfer of preferred equity in the Borrower or
its owners), provided certain conditions set forth in the Loan Documents
are satisfied,
then the Master Servicer (with respect to each Mortgage Loan other than a
Specially Serviced Loan) or the Special Servicer (with respect to each Specially
Serviced Loan), as applicable, on behalf of the Trust Fund shall not be required
to enforce such due-on-encumbrance clauses and in connection therewith, will not
be required to (i) accelerate the payments on the related Mortgage Loan or
Serviced Whole Loan or (ii) withhold its consent to such lien or encumbrance, if
the Master Servicer or the Special Servicer, as applicable, (x) determines, in
accordance with the Servicing Standard that such enforcement would not be in the
best interests of the Trust Fund or the holder of the related Serviced Companion
Loan, if applicable (giving due regard to the junior nature of the related B
Loan, if any), or that in the case of a Mortgage Loan or Serviced Whole Loan
described in clause (b)(iii) above that the conditions to further encumbrance
have been satisfied and (y) as to any Mortgage Loan or Serviced Whole Loan,
receives prior written confirmation from S&P and Fitch that granting such
consent would not, in and of itself, cause a downgrade, qualification or
withdrawal of any of the then-current ratings assigned to the Certificates, if
applicable; provided, that in the case of S&P, such confirmation shall only be
required with respect to any Mortgage Loan (together with any Mortgage Loans
cross-collateralized with such Mortgage Loan) that (1) represents 2% or more of
the Stated Principal Balance of all of the Mortgage Loans held by the Trust Fund
(or 5% if the aggregate Stated Principal Balance of all of the Mortgage Loans
held by the Trust Fund is less than $100 million), (2) has a Stated Principal
Balance greater than $20 million, (3) is one of the ten largest Mortgage Loans
based on Stated Principal Balance, (4) has a loan-to-value ratio (which includes
additional debt of the related Borrower and any related mezzanine debt, if any)
that is greater than or equal to 85% or (5) has a Debt Service Coverage Ratio
(which includes additional debt of the related Borrower and any related
mezzanine debt, if any) that is less than 1.20x or, in the case of Fitch with
respect to any Mortgage Loan that (together with any Mortgage Loans cross
collateralized with such Mortgage Loan) is one of the then current top 10 loans
(by Stated Principal Balance) in the pool, and in connection with the request
for such Rating Agency Confirmation, upon request the Master Servicer or Special
Servicer, as applicable, shall prepare and deliver to Fitch a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. To the extent not
precluded by the Mortgage Loan documents, the Special Servicer shall not approve
an assumption or substitution without requiring the related Borrower to pay any
fees owed to the Rating Agencies associated with the approval of such lien or
encumbrance. However, in the event that the related Borrower is required but
fails to pay such fees, such fees shall be an expense of the Trust Fund and, in
the case of any Serviced Whole Loan, such expense shall first be allocated to
the related Serviced B Loan (up to the full Stated Principal Balance thereof),
if any, and, then, to the Mortgage Loan, or in the case of a Serviced Whole Loan
with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based
on their respective outstanding principal balance).
Notwithstanding anything in the foregoing paragraph to the contrary, the
Special Servicer will have the right to consent to any further encumbrance of
any Mortgage Loan or Serviced Whole Loan that is not a Specially Serviced
Mortgage Loan; provided, that the Special Servicer shall obtain the consent of
the Directing Certificateholder to any such waiver of a due on encumbrance
clause of any Mortgage Loan, Serviced Whole Loan or Specially Serviced Loan, to
the extent described in Sections 3.29 hereof.
(c) If the Directing Certificateholder objects in writing to the
Special Servicer's determination that such conditions have been satisfied, then
the Special Servicer shall not permit transfer, assumption or further
encumbrance of such Mortgage Loan or Serviced Whole Loan.
(d) Nothing in this Section 3.09 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan (other than the Non-Serviced Mortgage Loan), any sale or
other transfer of the related Mortgaged Property or the creation of any lien or
other encumbrance with respect to such Mortgaged Property.
(e) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, neither the Master Servicer nor the
Special Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan or the related Note, other
than pursuant to Section 3.30 or 3.32 hereof, as applicable.
(f) With respect to any Mortgage Loan (other than the Non-Serviced
Mortgage Loan) or Serviced Whole Loan which permits release of Mortgaged
Properties through defeasance and subject to Section 3.30(m):
(i) If such Mortgage Loan or Serviced Whole Loan requires that the
Master Servicer (on behalf of the Trustee) purchase the required
government securities, then the Master Servicer shall purchase such
obligations, at the related Borrower's expense, in accordance with the
terms of such Mortgage Loan; provided, that the Master Servicer shall not
accept the amounts paid by the related Borrower to effect defeasance until
acceptable government securities have been identified.
(ii) To the extent not inconsistent with such Mortgage Loan or
Serviced Whole Loan, the Master Servicer shall require the related
Borrower to provide an Opinion of Counsel (which shall be an expense of
the related Borrower) to the effect that the Trustee has a first priority
perfected security interest in the defeasance collateral (including the
government securities) and the assignment of the defeasance collateral is
valid and enforceable; such opinion, together with any other certificates
or documents to be required in connection with such defeasance shall be in
form and substance acceptable to each Rating Agency.
(iii) To the extent not inconsistent with such Mortgage Loan or
Serviced Whole Loan, the Master Servicer shall require a certificate at
the related Borrower's expense from an Independent certified public
accountant certifying to the effect that the government securities will
provide cash flows sufficient to meet all payments of interest and
principal (including payments at maturity) on such Mortgage Loan or
Serviced Whole Loan in compliance with the requirements of the terms of
the related Loan Documents.
(iv) Prior to permitting the release of any Mortgaged Properties
and, if applicable, assumption of the Mortgage Loan or Serviced Whole Loan
by a successor borrower, to the extent not inconsistent with the related
Mortgage Loan or Serviced Whole Loan, the Master Servicer shall obtain, at
the related Borrower's expense, written confirmation from each Rating
Agency that such release and assumption, if applicable, would not, in and
of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates; provided, however, that
(A) the Master Servicer shall not be required to obtain such written
confirmation from Fitch unless such Mortgage Loan (together with any
Mortgage Loans cross-collateralized with such Mortgage Loan) at the time
of such defeasance is (x) one of the ten largest Mortgage Loans by Stated
Principal Balance, (y) a Mortgage Loan with a Stated Principal Balance
greater than $20,000,000 or (z) a Mortgage Loan that represents 5% or more
of the Stated Principal Balance of all Mortgage Loans and (B) the Master
Servicer shall not be required to obtain such written confirmation from
S&P with respect to any Mortgage Loan that has a Stated Principal Balance
that is equal to or less than $20,000,000 or 5% of the aggregate Stated
Principal Balance of all of the Mortgage Loans (whichever is less), so
long as such Mortgage Loan is not one of the ten largest Mortgage Loans by
Stated Principal Balance, if the Master Servicer delivers to the Trustee
and S&P a letter or a certificate in the form of Exhibit T attached
hereto.
(v) Prior to permitting release of any Mortgaged Property, if the
related Mortgage Loan so requires or permits, and provides for the related
Borrower to pay the cost thereof, the Master Servicer shall require an
Opinion of Counsel of the related Borrower to the effect that such release
will not cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding, cause a tax to be imposed on the
Trust Fund under the REMIC Provisions or cause the Grantor Trust to fail
to qualify as a grantor trust under subpart E, Part I of subchapter J of
the Code for federal income tax purposes.
(vi) No defeasance shall occur prior to the second anniversary of
the Startup Day of the Trust REMICs.
(vii) The Trustee shall at the expense of the related Borrower (to
the extent permitted by the related Loan Documents) hold the U.S.
government obligations as pledgee for the benefit of the
Certificateholders and, if applicable, the Serviced Companion Loan
Noteholders, and apply payments of principal and interest received on the
government obligations to the Collection Account in respect of the
defeased Mortgage Loan according to the payment schedule existing
immediately prior to the defeasance.
(viii) The Master Servicer shall, in accordance with the Servicing
Standard, enforce provisions in the Mortgage Loans that it is servicing
requiring Borrowers to pay all reasonable expenses associated with a
defeasance.
(ix) To the extent not inconsistent with such Mortgage Loan, or to
the extent the related Loan Documents provide the lender with discretion,
the Master Servicer shall require the Borrower to establish a single
purpose entity to act as a successor borrower.
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Other than with respect to the Non-Serviced Mortgage Loan, contemporaneously
with the earliest of (i) the effective date of any (A) modification of the
Maturity Date, a Mortgage Rate, principal balance or amortization terms of any
Mortgage Loan or Serviced Whole Loan or any other term of a Mortgage Loan or
Serviced Whole Loan, (B) extension of the Maturity Date of a Mortgage Loan or
Serviced Whole Loan as described below in Section 3.30 or 3.32, as applicable,
or (C) consent to the release of any Mortgaged Property from the lien of the
related Mortgage other than pursuant to the terms of the related Mortgage Loan
or Serviced Whole Loan, (ii) the occurrence of an Appraisal Reduction Event,
(iii) a default in the payment of a Balloon Payment for which an extension is
not granted pursuant to Section 3.26(g), or (iv) the date on which the Special
Servicer, consistent with the Servicing Standard, requests an Updated Valuation,
the Special Servicer shall obtain an Updated Valuation or Small Loan Appraisal
Estimate (or a letter update for an existing appraisal which is less than two
years old), the cost of which shall constitute a Property Advance; provided,
however, that the Special Servicer shall not be required to obtain an Updated
Valuation pursuant to clauses (i) through (iv) above with respect to any
Mortgaged Property for which there exists an Appraisal or Small Loan Appraisal
Estimate which is less than twelve months old unless the Special Servicer has
actual knowledge of a material adverse change in circumstances that, consistent
with the Servicing Standard, would call into question the validity of such
Appraisal or Small Loan Appraisal Estimate. For so long as such Mortgage Loan or
Serviced Whole Loan is a Specially Serviced Loan, the Special Servicer shall
obtain letter updates to each Updated Valuation annually and prior to the
Special Servicer granting extensions beyond one year or any subsequent extension
after granting a one year extension with respect to the same Mortgage Loan or
Serviced Whole Loan. The Special Servicer will be required to update, on an
annual basis, each Small Loan Appraisal Estimate or Updated Appraisal for so
long as the related Mortgage Loan or Serviced Whole Loan remains a Specially
Serviced Loan. The Special Servicer shall send all such letter updates and
Updated Valuations to the Master Servicer, the Rating Agencies, the Controlling
Class Representative and the Directing Certificateholder.
The Special Servicer shall monitor each Specially Serviced Loan,
evaluate whether the causes of the default can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Borrower if, in the
Special Servicer's judgment, cure is likely, and take such other actions
(including without limitation, negotiating and accepting a discounted payoff of
a Mortgage Loan or Serviced Whole Loan) as are consistent with the Servicing
Standard. If, in the Special Servicer's judgment, such corrective action has
been unsuccessful, no satisfactory arrangement can be made for collection of
delinquent payments, and the Specially Serviced Loan has not been released from
the Trust Fund pursuant to any provision hereof, and except as otherwise
specifically provided in Sections 3.09(a) and 3.09(b), the Special Servicer may,
to the extent consistent with the Asset Status Report (and with the consent of
the Directing Certificateholder) and with the Servicing Standard, accelerate
such Specially Serviced Loan and commence a foreclosure or other acquisition
with respect to the related Mortgaged Property or Properties, provided, that the
Special Servicer determines that such acceleration and foreclosure are more
likely to produce a greater recovery to Certificateholders and, if applicable,
Serviced Companion Loan Noteholders (as a collective whole) on a present value
basis (discounting at the related Mortgage Rate) than would a waiver of such
default or an extension or modification in accordance with the provisions of
Section 3.30 or 3.32 hereof, as applicable. The Master Servicer shall or, on an
emergency basis, in accordance with Section 3.24(b), the Special Servicer may,
pay the costs and expenses in any such proceedings as a Property Advance unless
the Master Servicer or the Special Servicer, as applicable, determines, in its
good faith judgment, that such Property Advance would constitute a
Nonrecoverable Advance; provided, however, if the Special Servicer determines
that such payment would be in best interests of the Certificateholders (and, in
the case of Serviced Whole Loans, Companion Loan Noteholders (as a collective
whole)), the Special Servicer shall direct the Master Servicer to make such
payment from the Collection Account (or, if applicable, the applicable Serviced
Whole Loan Collection Account). The Trustee shall be entitled to conclusively
rely upon any determination of the Master Servicer that a Property Advance, if
made, would constitute a Nonrecoverable Advance. If the Master Servicer does not
make such Property Advance in violation of the second preceding sentence, the
Trustee shall make such Property Advance, unless the Trustee determines that
such Property Advance would be a Nonrecoverable Advance. The Master Servicer and
the Trustee, as applicable, shall be entitled to reimbursement of Property
Advances (with interest at the Advance Rate) made pursuant to this paragraph to
the extent permitted by Section 3.06.
(b) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will
not be sufficient to warrant the cost, time, expense and/or exposure of
pursuing the deficiency judgment and such determination is evidenced by an
Officer's Certificate delivered to the Trustee.
(c) In the event that title to any Mortgaged Property is acquired
in foreclosure or by deed in lieu of foreclosure, the deed or certificate of
sale shall be issued to the Trustee, or to its nominee (which shall not
include the Special Servicer) or a separate Trustee or co-Trustee on behalf
of the Trustee as Holder of the Lower-Tier Regular Interests and the
Certificateholders and, if applicable, the Serviced Companion Loan
Noteholders. Notwithstanding any such acquisition of title and cancellation
of the related Mortgage Loan or Serviced Whole Loan, as applicable, such
Mortgage Loan or Serviced Whole Loan, as applicable, shall (except for
purposes of Section 9.01) be considered to be a Serviced REO Loan until such
time as the related Serviced REO Property shall be sold by the Trust Fund and
shall be reduced only by collections net of expenses. Consistent with the
foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan or Serviced Companion Loan, as applicable, shall be considered
to be an outstanding Mortgage Loan or Serviced Companion Loan, as applicable:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note and,
for purposes of determining the Stated Principal Balance thereof, the
related amortization schedule in effect at the time of any such
acquisition of title shall remain in effect; and
(ii) subject to Section 1.02(g), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable under the
related Note(s) in accordance with the terms of such Note(s). In the
absence of such terms, Net REO Proceeds shall, subject to Section 1.02(g),
be deemed to have been received first, in payment of the accrued interest
that remained unpaid on the date that the related Serviced REO Property
was acquired by the Trust Fund; second, in respect of the delinquent
principal installments that remained unpaid on such date; and thereafter,
Net REO Proceeds received in any month shall be applied to the payment of
installments of principal and accrued interest on such Mortgage Loan or
Serviced Companion Loan, as applicable, deemed to be due and payable in
accordance with the terms of such Note(s) and such amortization schedule
until such principal has been paid in full and then to other amounts due
under such Mortgage Loan or Serviced Companion Loan, as applicable. If
such Net REO Proceeds exceed the Monthly Payment then payable, the excess
shall be treated as a Principal Prepayment received in respect of such
Mortgage Loan or Serviced Companion Loan, as applicable.
(d) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(l) of the Code) so acquired by the Special
Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the Lower-Tier
REMIC, as applicable) to the effect that the holding of such personal
property by the Lower-Tier REMIC, as applicable, will not cause the
imposition of a tax on any Trust REMIC under the REMIC Provisions or cause
any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(e) Notwithstanding any provision to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund,
obtain title to any direct or indirect partnership interest or other equity
interest in any Borrower pledged pursuant to any pledge agreement unless the
Special Servicer shall have requested and received an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund; provided that with
respect to the Serviced Whole Loan, such expenses shall be allocated first to
the related Serviced B Loan and second, to the extent such expense remains
unpaid, to the related Mortgage Loan, or in the case of a Serviced Whole Loan
with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance) to the effect that
the holding of such partnership interest or other equity interest by the
Trust Fund will not cause the imposition of a tax on any Trust REMIC under
the REMIC Provisions or cause any Trust REMIC to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary contained in
this Agreement, the Special Servicer shall not, on behalf of the Trust Fund,
obtain title to a Mortgaged Property as a result of or in lieu of foreclosure
or otherwise, obtain title to any direct or indirect partnership interest in
any Borrower pledged pursuant to a pledge agreement and thereby be the
beneficial owner of a Mortgaged Property, have a receiver of rents appointed
with respect to, and shall not otherwise acquire possession of, or take any
other action with respect to, any Mortgaged Property if, as a result of any
such action, the Trustee, for the Trust Fund, the Certificateholders or
Serviced Companion Loan Noteholders, if applicable, would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
from time to time, or any comparable law, unless the Special Servicer has
previously determined in accordance with the Servicing Standard, based on an
updated environmental assessment report prepared by an Independent Person who
regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust
Fund (and with respect to the Serviced Whole Loans, the Serviced Companion
Loan Noteholders), as a collective whole, to take such actions as are
necessary to bring such Mortgaged Property in compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal, state
or local law or regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after consultation with
an environmental consultant, it would be in the best economic interest of
the Trust Fund to take such actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained by
the Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental
laws or that Hazardous Materials may be present but does not definitively
establish such fact, the Special Servicer shall cause such further
environmental tests to be conducted by an Independent Person who regularly
conducts such tests as the Special Servicer shall deem prudent to protect the
interests of Certificateholders and, if applicable, the Serviced Companion
Loan Noteholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section
3.10.
(g) The environmental assessment contemplated by Section 3.10(g)
shall be prepared within three months (or as soon thereafter as practicable)
of the determination that such assessment is required by any Independent
Person who regularly conducts environmental audits for purchasers of
commercial property where the Mortgaged Property is located, as determined by
the Special Servicer in a manner consistent with the Servicing Standard. Upon
the written direction of the Special Servicer and delivery by the Special
Servicer to the Master Servicer of pertinent back-up information the Master
Servicer shall advance the cost of preparation of such environmental
assessments as a Property Advance unless the Master Servicer determines, in
its good faith judgment, that such Property Advance would be a Nonrecoverable
Advance. The Master Servicer shall be entitled to reimbursement of Property
Advances (with interest at the Advance Rate) made pursuant to the preceding
sentence to the extent permitted by Section 3.06.
(h) If the Special Servicer determines pursuant to Section
3.10(f)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund (and with respect to the Serviced Whole Loans, the Serviced Companion
Loan Noteholders), as a collective whole, to take such actions as are
necessary to bring such Mortgaged Property in compliance therewith, or if the
Special Servicer determines pursuant to Section 3.10(f)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund (and with
respect to any Serviced Whole Loan, the related Serviced Companion Loan
Noteholders), as a collective whole, to take such action with respect to the
containment, clean-up or remediation of Hazardous Materials affecting such
Mortgaged Property as is required by law or regulation, the Special Servicer
shall take such action as it deems to be in the best economic interest of the
Trust Fund (and with respect to any Serviced Whole Loan, the related Serviced
Companion Loan Noteholders), but only if the Trustee has mailed notice to the
Holders of the Regular Certificates and the related Serviced Companion Loan
Noteholders of such proposed action, which notice shall be prepared by the
Special Servicer, and only if the Trustee does not receive, within 30 days of
such notification, instructions from the Holders of Regular Certificates
entitled to a majority of the Voting Rights and, with respect to Serviced
Whole Loans, the applicable Serviced Companion Loan Noteholders directing the
Special Servicer not to take such action. Notwithstanding the foregoing, if
the Special Servicer reasonably determines that it is likely that within such
30-day period irreparable environmental harm to such Mortgaged Property would
result from the presence of such Hazardous Materials and provides a prior
written statement to the Trustee setting forth the basis for such
determination, then the Special Servicer may take such action to remedy such
condition as may be consistent with the Servicing Standard. None of the
Trustee, the Master Servicer or the Special Servicer shall be obligated to
take any action or not take any action pursuant to this Section 3.10(i) at
the direction of the Certificateholders or with respect to any Serviced Whole
Loan, at the direction of the Certificateholders and the related Serviced
Companion Loan Noteholders unless the Certificateholders and, with respect to
any Serviced Companion Loan, the Serviced Companion Loan Noteholders agree to
indemnify the Trustee, the Master Servicer and the Special Servicer with
respect to such action or inaction. The Master Servicer shall, or, on an
emergency basis, in accordance with Section 3.24(b), the Special Servicer
may, advance the cost of any such compliance, containment, clean-up or
remediation as a Property Advance unless the Master Servicer or the Special
Servicer, as applicable, determines, in its good faith judgment, that such
Advance would constitute a Nonrecoverable Advance.
(i) The Special Servicer shall notify the Master Servicer of any
Mortgaged Property which is abandoned or foreclosed that requires reporting
to the IRS and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with
respect to any Mortgage Loan or Serviced Whole Loan which is abandoned or
foreclosed and the Master Servicer shall report to the IRS and the related
Borrower, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C, all forgiveness of indebtedness
to the extent such information has been provided to the Master Servicer by
the Special Servicer. The Master Servicer shall deliver a copy of any such
report to the Trustee.
(j) The costs of any Updated Valuation obtained pursuant to this
Section 3.10 shall be paid by the Master Servicer or, on an emergency basis,
in accordance with Section 3.24(b), may be paid by the Special Servicer, as
applicable, as a Property Advance and shall be reimbursable from the
Collection Account or, with respect to the Serviced Whole Loans, first, from
the applicable Serviced Whole Loan Collection Account and second, to the
extent amounts in the Serviced Whole Loan Collection Account are insufficient
therefore, from the Collection Account in accordance with Section 3.06(b).
Section 3.11 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan or Serviced Whole Loan, or the receipt
by the Master Servicer of a notification that payment in full has been escrowed
in a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee or the Custodian by a certification (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Collection Account or the applicable Serviced Whole Loan Collection Account,
as applicable, pursuant to Section 3.05 have been or will be so deposited) of a
Servicing Officer and shall request delivery to it of the related Mortgage File.
Any expense incurred in connection with any instrument of satisfaction or deed
of reconveyance that is not paid by the related Borrower shall be chargeable to
the Trust Fund. The Master Servicer agrees to use reasonable efforts in
accordance with the Servicing Standard to enforce any provision in the relevant
Loan Documents that require the Borrower to pay such amounts. If an assignment
of Mortgage, Assignment of Leases, Rents and Profits, assignment of security
agreement or assignment of UCC financing statement has been recorded in the name
of MERS or its designee, the Master Servicer shall take all necessary action to
reflect the release of such assignment of Mortgage, assignment of Assignment of
Leases, assignment of security agreement or assignment of UCC financing
statement on the records of MERS. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be an expense of the
Trustee or chargeable to the Collection Account or any Serviced Whole Loan
Collection Account.
From time to time upon request of the Master Servicer or the Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Custodian shall promptly release the Mortgage File (or any portion thereof)
designated in such Request for Release to the Master Servicer or the Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan or the Serviced
Whole Loan into a Serviced REO Property, or in the event of a substitution of a
Mortgage Loan pursuant to Section 2.03, or receipt by the Trustee and the
Custodian of a certificate of a Servicing Officer stating that such Mortgaged
Property was liquidated and that all amounts received or to be received in
connection with such liquidation which are required to be deposited into the
Collection Account or the applicable Serviced Whole Loan Collection Account, as
applicable, have been so deposited, or that such Mortgage Loan or Serviced Whole
Loan has become a Serviced REO Property, or that the Master Servicer has
received a Qualifying Substitute Mortgage Loan and the applicable Substitution
Shortfall Amount, the Custodian shall deliver a copy of the Request for Release
to the Master Servicer or the Special Servicer, as applicable. If from time to
time, pursuant to the terms of the applicable Co-Lender Agreement or Other
Pooling and Servicing Agreement, and as appropriate for enforcing the terms of
the Desert Passage Mortgage Loan, the Other Servicer or the Other Special
Servicer requests delivery to it of the original Note by providing the Trustee a
request for release, then the Trustee shall release or cause the release of such
original Note to the Other Servicer or the Other Special Servicer or its
designee.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
Trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, necessary to the foreclosure or Trustee's sale in respect of a
Mortgaged Property or to any legal action brought to obtain judgment against any
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or Trustee's sale.
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation. (a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Servicing Fee with respect to each Mortgage
Loan and Serviced Pari Passu Companion Loan. The Master Servicer's rights to the
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement. In addition, the Master Servicer shall be
entitled to receive, as additional Servicing Compensation, to the extent
permitted by applicable law and the related Mortgage Loans and Serviced
Companion Loans that it is servicing and the related Co-Lender Agreement, (i)
all investment income earned on amounts on deposit in the Collection Account
(and with respect to each Serviced Whole Loan, the related Serviced Whole Loan
Collection Account) and certain Reserve Accounts (to the extent consistent with
the related Loan Documents), (ii) any late payment charges and any Net Default
Interest collected by the Master Servicer or the Special Servicer during a
Collection Period accrued on any Performing Loan, in each case, remaining after
application thereof during such Collection Period to pay the Advance Interest
Amount relating to such Performing Loan and any unreimbursed Additional Trust
Fund Expenses (other than Special Servicing Fees, Workout Fees and Liquidation
Fees) relating to such Performing Loan incurred during or prior to such
Collection Period and, in the case of the Serviced Whole Loans, to the extent
allocated to the related Mortgage Loan in the related Co-Lender Agreement, and
as further described in Section 3.12(d), (iii) any amounts collected for checks
returned for insufficient funds (with respect to any Performing Loan or
Specially Serviced Loan), loan service transaction fees, demand fees,
beneficiary statement charges or similar items (but not including Prepayment or
Yield Maintenance Charges) and (iv) to the extent permitted by applicable law
and the related Loan Documents 50% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees and any similar
items relating to any Performing Loan (including any related application fees)
for as long as such Mortgage Loan or Serviced Companion Loan is not a Specially
Serviced Loan but excluding any Prepayment Premiums or Yield Maintenance
Charges, in each case to the extent received and not required to be deposited or
retained in the Collection Account or Serviced Whole Loan Collection Account, in
each case pursuant to Section 3.05; provided, however, that (A) the applicable
Master Servicer shall not be entitled to apply or retain as additional
compensation, any late payment charges with respect to any Mortgage Loan or
Serviced Companion Loan with respect to which a monetary default or monetary
event of default thereunder has occurred and is continuing unless and until such
monetary default or monetary event of default has been cured and all delinquent
amounts (including any Default Interest not waived) due with respect to such
Mortgage Loan or Serviced Companion Loan have been paid and (B) with respect to
(i) the Valley Forge Whole Loan, the related Net Default Interest and late
payment charges shall be allocated pro rata between the Valley Forge Mortgage
Loan and the Valley Forge B Loan in accordance with the terms of the related
Co-Lender Agreement and (ii) with respect to the Buckeye Portfolio Whole Loans,
default interest will be allocated first (after netting out Property Advances
and other Trust Expenses described herein) to the Buckeye Portfolio Mortgage
Loan and then to the Buckeye Portfolio B Loan in accordance with the terms of
this Agreement and the related Co Lender Agreement]; provided, further, that
such Penalty Charges shall be applied to pay the Advance Interest Amount and
Additional Trust Fund Expenses to the extent required by Section 3.12(d). The
Master Servicer shall also be entitled pursuant to, and to the extent provided
in, Sections 3.06(b)(viii) or 3.07(b), as applicable, to withdraw from the
Collection Account and to receive from any Borrower Accounts (to the extent not
payable to the related Borrower under the Mortgage Loan or applicable law), Net
Prepayment Interest Excess, if any, that accrue on the Mortgage Loans that it is
servicing and any interest or other income earned on deposits therein. In
addition, provided that a Non-Serviced Mortgage Loan is not a "Specially
Serviced Mortgage Loan" under the Other Pooling and Servicing Agreement, the
Master Servicer shall be entitled to the portion of Net Default Interest and any
late payment fees collected by the Other Servicer servicing the Non-Serviced
Mortgage Loan that are allocated to the Non-Serviced Mortgage Loan if it is not
in special servicing (in accordance with the related Co-Lender Agreement and
Other Pooling and Servicing Agreement) during a Collection Period remaining
after application thereof to reimburse interest on related P&I Advances and to
reimburse the Trust for certain expenses of the Trust, if applicable, as
provided in this Agreement. Except as specified in the preceding sentence and
except with respect to clause (i) in this Section 3.12, the Master Servicer will
not be entitled to the compensation set forth in clauses (ii), (iii) and (iv)
with respect to the Non-Serviced Mortgage Loan.
Notwithstanding anything herein to the contrary, the Master Servicer
(and its successors and assigns) shall also be entitled to the Excess Servicing
Strip with respect to the Mortgage Loans that it is servicing and may at its
option assign or pledge to any third party or retain for itself the Excess
Servicing Strip; provided, however, that in the event of any resignation or
termination of the Master Servicer, all or any portion of the Excess Servicing
Strip may be reduced by the Trustee to the extent reasonably necessary (in the
sole discretion of the Trustee) for the Trustee to obtain a qualified successor
Master Servicer (and primary servicer with respect to the Mortgage Loans or
Serviced Whole Loans being primarily serviced by the Master Servicer) (which
successor may include the Trustee) that meets the requirements of Section 6.4
and that requires market rate servicing compensation that accrues at a per annum
rate in excess of 0.005% (0.50 basis points). The Master Servicer (or its
successor hereunder, if any) shall pay the Excess Servicing Strip to the holder
of the Excess Servicing Strip (i.e., Midland Loan Services, Inc. or any such
third party) at such time and to the extent the Master Servicer is entitled to
receive payment of its Master Servicing Fees hereunder, notwithstanding any
resignation or termination of the Master Servicer hereunder (subject to
reduction pursuant to the preceding sentence).
In the event that the initial Master Servicer is terminated or
resigns as Master Servicer, it (and its successors and assigns) will be entitled
to retain the Excess Servicing Strip, except to the extent that any portion of
such Excess Servicing Strip is needed (as determined by the Trustee in its
discretion) to compensate any replacement Master Servicer for assuming the
duties of the Master Servicer under this Agreement.
As compensation for its activities hereunder on each Distribution
Date, the Trustee shall be entitled with respect to each Mortgage Loan to the
Trustee Fee, which shall be payable from amounts on deposit in the Lower-Tier
Distribution Account. The Trustee shall pay the routine fees of the Certificate
Registrar, the Paying Agent and the Authenticating Agent. The Trustee's rights
to the Trustee Fee may not be transferred in whole or in part except in
connection with the transfer of all of its responsibilities and obligations
under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it. Except as
otherwise provided herein, the Trustee shall pay all expenses incurred by it in
connection with its activities hereunder.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Loan and
Serviced REO Loan to the Special Servicing Compensation, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06. The Special Servicer's rights to the Special Servicing Fee may
not be transferred in whole or in part except in connection with the transfer
of all of the Special Servicer's responsibilities and obligations under this
Agreement. In addition, the Special Servicer shall be entitled to receive, as
Special Servicing Compensation, to the extent permitted by applicable law and
the related Loan Documents, (i) any late payment charges and any Net Default
Interest collected by the Master Servicer or the Special Servicer during a
Collection Period accrued on any Specially Serviced Loan remaining after
application thereof during such Collection Period (and in the case of the
Serviced Whole Loans, as set forth in the related Co-Lender Agreement and
Section 3.12(d) herein) to pay the Advance Interest Amount relating to such
Specially Serviced Loan and any unreimbursed Additional Trust Fund Expenses
incurred during or prior to such Collection Period (but not NSF check fees
and the like, which shall be paid to the Master Servicer) as further
described below in this subsection (b), (ii) 50% of any Assumption Fees,
due-on-sale fees, due-on-encumbrance fees, loan modification fees, extension
fees, and other similar fees relating to any Performing Loan (including any
related application fees), excluding any Prepayment Premiums or Yield
Maintenance Charges, (iii) any interest or other income earned on deposits in
the REO Accounts, and (iv) 100% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges and other
similar fees (including any related application fees) relating to any
Specially Serviced Loan or Serviced REO Loan; provided, however, that the
Special Servicer shall not be entitled to apply or retain as additional
compensation, any late payment charges with respect to any Specially Serviced
Loan with respect to which a monetary default or monetary event of default
thereunder has occurred and is continuing unless and until such monetary
default or monetary event of default has been cured and all delinquent
amounts (including any Default Interest not waived) due with respect to such
Mortgage Loan have been paid.
Except as otherwise provided herein, the Special Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it.
(c) In addition, a Workout Fee will be payable to the Special
Servicer with respect to each Mortgage Loan (other than the Non-Serviced
Mortgage Loan) or Serviced Companion Loan that ceases to be a Specially
Serviced Loan pursuant to the definition thereof. As to each such Mortgage
Loan or Serviced Companion Loan, the Workout Fee will be payable out of each
collection of interest and principal (including scheduled payments,
prepayments, Balloon Payments and payments at maturity) received on such
Mortgage Loan or Serviced Companion Loan for so long as it remains a
Corrected Mortgage Loan. The Workout Fee with respect to any such Mortgage
Loan (other than the Non-Serviced Mortgage Loan) or Serviced Companion Loan
will cease to be payable if such loan again becomes a Specially Serviced Loan
or if the related Mortgaged Property becomes a Serviced REO Property;
provided that a new Workout Fee will become payable if and when such Mortgage
Loan or Serviced Companion Loan again ceases to be a Specially Serviced Loan.
If the Special Servicer is terminated (other than for cause) or resigns with
respect to any or all of its servicing duties, it shall retain the right to
receive any and all Workout Fees payable with respect to the Mortgage Loans
or the Serviced Whole Loans that cease to be a Specially Serviced Loan during
the period that it had responsibility for servicing this Specially Serviced
Loan and that had ceased being Specially Serviced Loans (or for any Specially
Serviced Loan that had not yet become a Corrected Mortgage Loan because as of
the time that the Special Servicer is terminated the borrower has not made
three consecutive monthly debt service payments and subsequently the
Specially Serviced Loan becomes a Corrected Mortgage Loan) at the time of
such termination or resignation (and the successor Special Servicer shall not
be entitled to any portion of such Workout Fees), in each case until the
Workout Fee for any such loan ceases to be payable in accordance with the
preceding sentence.
A Liquidation Fee will be payable to the Special Servicer with
respect to each Mortgage Loan (other than the Non-Serviced Mortgage Loan)
repurchased by a Mortgage Loan Seller after the applicable time period
(including any applicable extension thereof) in Section 2.03(d) or Specially
Serviced Loan as to which the Special Servicer obtains a full, partial or
discounted payoff from the related Borrower and, except as otherwise described
below, with respect to any Specially Serviced Loan or Serviced REO Property as
to which the Special Servicer recovered any Liquidation Proceeds. As to each
such Mortgage Loan repurchased by a Mortgage Loan Seller after the applicable
time period (including any applicable extension thereof) in Section 2.03(d) or
Specially Serviced Loan and Serviced REO Property, the Liquidation Fee will be
payable from the related payment or proceeds. Notwithstanding anything to the
contrary described above, no Liquidation Fee will be payable based on, or out
of, Liquidation Proceeds received in connection with (i) the purchase of any
Defaulted Mortgage Loan by the Special Servicer or the Controlling Class
Representative or any of their Affiliates (but specifically excluding the
purchase of any Defaulted Mortgage Loan by an unaffiliated third party assignee
of a Purchase Option if such assignee did not make a payment of material value
for such Purchase Option), (ii) the purchase of all of the Mortgage Loans and
REO Properties by the Master Servicer, the Special Servicer or the Controlling
Class Representative in connection with the termination of the Trust Fund or the
purchase of all of the Mortgage Loans and all property acquired in respect of
any Mortgage Loan by the Sole Certificateholder pursuant to Section 9.01, (iii)
a repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to Section
2.03(d) prior to the expiration of the time periods (including any applicable
extension thereof) set forth therein, (iv) in the case of any existing mezzanine
indebtedness or any mezzanine indebtedness that may exist on a future date, the
purchase of the related Mortgage Loan by a mezzanine lender, to the extent
permitted by the related mezzanine intercreditor agreement, unless the related
mezzanine intercreditor agreement or other related agreements require the
purchaser to pay such Liquidation Fee or similar fee, (v) in the case of any
Mortgage Loan with a Serviced Companion Loan, the purchase of such Mortgage Loan
by the holder of the related B Loan pursuant to the related Co-Lender Agreement
or (vi) a Loss of Value Payment by a Mortgage Loan Seller. With respect to any
future mezzanine debt, to the extent not prohibited by the Mortgage Loan
Documents, the Master Servicer or Special Servicer, as applicable, shall require
that the related mezzanine intercreditor agreement provide that in the event of
a purchase of a Mortgage Loan by the related mezzanine lender on a date that is
more than 90 days following the date that the related option becomes
exercisable, such mezzanine lender shall be required to pay a Liquidation Fee
equal to the amount that the Special Servicer would otherwise be entitled to
under this Agreement with respect to a liquidation of such Mortgage Loan
(provided, however, that such Liquidation Fee shall in all circumstances be
payable by the related mezzanine lender and shall not, under any circumstance,
by payable out of the Trust). If, however, Liquidation Proceeds are received
with respect to any Specially Serviced Loan as to which the Special Servicer is
properly entitled to a Workout Fee, such Workout Fee will be payable based on
and out of the portion of such Liquidation Proceeds that constitute principal
and/or interest. Notwithstanding anything herein to the contrary, the Special
Servicer shall only be entitled to receive a Liquidation Fee or a Workout Fee,
but not both, with respect to Liquidation Proceeds received on any Mortgage Loan
or any Specially Serviced Loan. In the event that (i) the Special Servicer has
been terminated, and (ii) either prior or subsequent to such termination, either
(A) a Specially Serviced Loan was liquidated or modified pursuant to an action
plan submitted by the initial Special Servicer and approved (or deemed approved)
by the Directing Certificateholder, or (B) a Specially Serviced Loan being
monitored by the Special Servicer subsequently became a Corrected Mortgage Loan,
then in either such event the Special Servicer shall be paid the related Workout
Fee or Liquidation Fee, as applicable.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on Specially Serviced Loans it is responsible for
servicing hereunder that accrued during such time as such Mortgage Loan or
Serviced Companion Loan was a Specially Serviced Loan, but only to the extent
actually paid by the related Borrower and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan or Serviced Companion
Loan (including interest on Advances) have been paid and are not needed to
first, (x) reimburse the Trust Fund for Additional Trust Fund Expenses paid in
connection therewith during or prior to the Collection Period in which such
Penalty Charges were collected and (y) reimburse Advance Interest Amounts paid
to the Master Servicer, Trustee or Special Servicer, as applicable, that accrued
with respect to the related Mortgage Loan or Serviced Companion Loan during the
Collection Period in which such Penalty Charges were collected; provided, that
with respect to a Serviced Companion Loan, Penalty Charges with respect to such
Serviced Companion Loan shall be paid to the holder of such Serviced Companion
Loan as allocated in the related Co-Lender Agreement. The Special Servicer shall
be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts, other than management fees in respect of REO
Properties, due and owing to any of its sub-servicers and the premiums for any
blanket Insurance Policy obtained by it insuring against hazard losses pursuant
to Section 3.07), if and to the extent such expenses are not expressly payable
directly out of the Collection Account or if a Serviced Whole Loan is involved,
the applicable Serviced Whole Loan Collection Account or the applicable REO
Account or as a Property Advance, and the Special Servicer shall not be entitled
to reimbursement therefor except as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage
Loan (other than with respect to a Serviced Whole Loan, with regard to which
Penalty Charges shall be allocated as set forth in the related Co-Lender
Agreement) during the related Collection Period shall be applied (as between
Default Interest and late payment changes, in the priority set forth in the
definition of "Advance Interest Amount") to reimburse (i) the Master
Servicer, the Special Servicer or the Trustee for interest on Advances with
respect to such Mortgage Loan that accrued in the period that such Penalty
Charges were collected, (ii) the Trust Fund for all interest on Advances with
respect to such Mortgage Loan or Serviced Whole Loan previously paid to the
Master Servicer, the Special Servicer or the Trustee pursuant to Section
3.06(b)(vi) and (iii) the Trust Fund for any Additional Trust Fund Expenses
(other than Special Servicing Fees, Workout Fees and Liquidation Fees) with
respect to such Mortgage Loan paid in the Collection Period that such Penalty
Charges were collected and not previously paid out of Penalty Charges, and
any Penalty Charges remaining thereafter shall be distributed pro rata to the
Master Servicer and the Special Servicer based upon the amount of Penalty
Charges the Master Servicer or the Special Servicer would otherwise have been
entitled to receive during such period with respect to such Mortgage Loan
without any such application. With respect to the Non-Serviced Mortgage Loan
or any related REO Property, the Special Servicer shall not be entitled to
any Special Servicing Fees, Workout Fees or Liquidation Fees (other than any
Liquidation Fee obtained in connection with enforcement of a breach of a
representation or a warranty by a Mortgage Loan Seller). For the avoidance of
doubt, the portion of Penalty Charges allocated to a Mortgage Loan that is
part of a Whole Loan (in accordance with the applicable Co-Lender Agreement
and, if applicable, the Other Pooling and Servicing Agreement) shall be
allocated in accordance with clauses (i), (ii) and (iii) above (except that
with respect to the Non-Serviced Mortgage Loan, Advances in clause (i) shall
mean P&I Advances).
(e) [Reserved.]
(f) The Master Servicer, the Special Servicer and the Trustee
shall be entitled to reimbursement from the Trust Fund (and, prior to
recovery from the Trust Fund, in the case of any Serviced Whole Loans,
subject to the related Co-Lender Agreement, first from the related Serviced B
Loan, if any, and second, to the extent any such costs and expenses remain
unreimbursed, from the related Mortgage Loan, or in the case of a Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as
between the related Mortgage Loan and any related Serviced Pari Passu
Companion Loan (based on their respective outstanding principal balance)) for
the costs and expenses incurred by them in the performance of their duties
under this Agreement which are "unanticipated expenses incurred by the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(iii). Such
expenses shall include, by way of example and not by way of limitation,
environmental assessments, Updated Appraisals and appraisals in connection
with foreclosure, the fees and expenses of any administrative or judicial
proceeding and expenses expressly identified as reimbursable in Section
3.06(b)(xviii). All such costs and expenses shall be treated as costs and
expenses of the Lower-Tier REMIC (and, the related Serviced Whole Loan, if
applicable), and if not attributable to a specific Mortgage Loan or Serviced
Whole Loan, shall be allocated to the Lower-Tier REMIC.
(g) No provision of this Agreement or of the Certificates shall
require the Master Servicer, the Special Servicer or the Trustee to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the
exercise of any of their rights or powers, if, in the good faith business
judgment of the Master Servicer, Special Servicer or Trustee, as the case may
be, repayment of such funds would not be ultimately recoverable from late
payments, Net Insurance Proceeds, Net Liquidation Proceeds and other
collections on or in respect of the Mortgage Loans, or from adequate
indemnity from other assets comprising the Trust Fund against such risk or
liability.
If the Master Servicer, the Special Servicer or the Trustee receives
a request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund or
any Serviced Companion Loan Noteholder hereunder, then the Master Servicer, the
Special Servicer or the Trustee, as the case may be, shall not be required to
take any action in response to such request or inquiry unless such Borrower,
such Certificateholder, or such other Person, as applicable, makes arrangements
for the payment of the Master Servicer's, the Special Servicer's or the
Trustee's expenses associated with such counsel (including, without limitation,
posting an advance payment for such expenses) satisfactory to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, in its sole
discretion. Unless such arrangements have been made, the Master Servicer, the
Special Servicer or the Trustee, as the case may be, shall have no liability to
any Person for the failure to respond to such request or inquiry.
Section 3.13 Reports to the Trustee; Collection Account Statements.
(a) The Master Servicer shall deliver to the Trustee no later than 1:00 p.m.
(New York City time) one Business Day prior to the Servicer Remittance Date
prior to each Distribution Date, CMSA Loan Setup File (with respect to the first
Distribution Date), the CMSA Loan Periodic Update File with respect to all of
the Mortgage Loans that it is servicing for the related Distribution Date (which
shall include, without limitation, the amount of Available Funds with respect to
all of the Mortgage Loans and with respect to each Loan Group) including
information therein that states the anticipated P&I Advances for the related
Distribution Date. The Master Servicer's responsibilities under this Section
3.13(a) with respect to Serviced REO Loans shall be subject to the satisfaction
of the Special Servicer's obligations under Section 3.26.
(b) For so long as the Master Servicer makes deposits into or
credits to and withdrawals or debits from the Collection Account or any
Serviced Whole Loan Collection Account, not later than 15 days after each
Distribution Date, the Master Servicer shall forward to the Trustee a
statement prepared by the Master Servicer setting forth the status of each of
the Collection Account and each Serviced Whole Loan Collection Account as of
the close of business on the last Business Day of the prior month and showing
the aggregate amount of deposits into and withdrawals from the Collection
Account and each Serviced Whole Loan Collection Account of each category of
deposit (or credit) specified in Section 3.05 and each category of withdrawal
(or debit) specified in Section 3.06 for the related Collection Period, in
each case for the Mortgage Loans (including the Non-Serviced Mortgage Loan).
The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records
and accounts of the Master Servicer solely relating to the Mortgage Loans and
the performance of its duties hereunder.
(c) Beginning in August 2006, no later than 4:00 p.m. (New York
City time) on each Servicer Remittance Date, the Master Servicer shall
deliver or cause to be delivered to the Trustee the following reports (in
electronic form) with respect to the Mortgage Loans (and, if applicable, the
related REO Properties), providing the required information as of the
immediately preceding Determination Date: (i) to the extent the Master
Servicer has received the most recent CMSA Special Servicer Loan File from
the Special Servicer at the time required, the most recent Delinquent Loan
Status Report, Historical Liquidation Report, Historical Loan Modification
and Corrected Mortgage Loan Report and REO Status Report received from such
Special Servicer, (ii) the most recent CMSA Property File, CMSA Financial
File, Comparative Financial Status Report and the Loan Level Reserve/LOC
Report (in each case incorporating the data required to be included in the
CMSA Special Servicer Loan File), (iii) the Watch List with information that
is current as of such Determination Date and (iv) the CMSA Advance Recovery
Report.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer at least four Business
Days prior to the related Servicer Remittance Date in the form required by
Section 3.13(f) or shall be provided by means of such reports so delivered by
the Special Servicer to the Master Servicer in the form so required. In the
absence of manifest error, the Master Servicer shall be entitled to conclusively
rely upon, without investigation or inquiry, the information and reports
delivered to it by the Special Servicer, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or recalculate any
of the amounts and other information stated therein.
(d) The Master Servicer shall deliver or cause to be delivered to
the Trustee, the Underwriters and to any Rating Agency, the following
materials, in each case to the extent that such materials or the information
on which they are based have been received by the Master Servicer with
respect to the Mortgage Loans:
(i) At least annually, on or before June 30 of each year, beginning
with June 30, 2007, with respect to each Mortgage Loan (other than the
Non-Serviced Mortgage Loan) and Serviced REO Loan (to the extent prepared
by and received from the Special Servicer (in written format or in
electronic media) in the case of any Specially Serviced Loan or Serviced
REO Loan), an Operating Statement Analysis Report for the related
Mortgaged Property or Serviced REO Property as of the end of the preceding
calendar year (initially, year-end 2006), together with copies of the
related operating statements and rent rolls (but only to the extent the
related Borrower is required by the Mortgage to deliver, or otherwise
agrees to provide such information and, with respect to operating
statements and rent rolls for Specially Serviced Loans and REO Properties,
only to the extent requested by the Special Servicer) for the current
trailing 12 months, if available, or year-to-date. The Master Servicer (or
the Special Servicer in the case of Specially Serviced Loans and REO
Properties) shall use commercially reasonable efforts to obtain said
annual and other periodic operating statements and related rent rolls,
which efforts shall include a letter sent to the related Borrower (except
with respect to the Non-Serviced Mortgage Loan) (followed up with
telephone calls), requesting such annual and other periodic operating
statements and related rent rolls until they are received to the extent
such action is consistent with applicable law and the terms of the
Mortgage Loans. Upon receipt of such annual and other periodic operating
statements (including year-to-date statements) and related rent rolls and
the Master Servicer shall promptly update the Operating Statement Analysis
Report.
(ii) Within 45 days after receipt by the Master Servicer (or within
60 days of receipt by the Special Servicer in the case of a Specially
Serviced Loan or Serviced REO Property) of any annual year-end operating
statements with respect to any Mortgaged Property or Serviced REO Property
(to the extent prepared by and received from the Special Servicer in the
case of any Specially Serviced Loan or Serviced REO Property), an NOI
Adjustment Worksheet for such Mortgaged Property (with the annual year-end
operating statements attached thereto as an exhibit). The Master Servicer
will use the "Normalized" column from the NOI Adjustment Worksheet to
update the full year-end data on any Operating Statement Analysis Report
and will use any operating statements received with respect to any
Mortgaged Property (other than any Mortgaged Property which is a Serviced
REO Property or constitutes security for a Specially Serviced Loan) to
update the Operating Statement Analysis Report for such Mortgaged
Property.
The Master Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property (other than the Mortgaged Property securing
the Non-Serviced Mortgage Loan) and Serviced REO Property (to the extent
prepared by and received from the Special Servicer in the case of any Serviced
REO Property or any Mortgaged Property constituting security for a Specially
Serviced Loan) relating to a Mortgage Loan that it is servicing. The Operating
Statement Analysis Report for each Mortgaged Property (other than the Mortgaged
Property securing the Non-Serviced Mortgage Loan and other than any such
Mortgaged Property which is a Serviced REO Property or constitutes security for
a Specially Serviced Loan) is to be updated with trailing 12-month information,
as available (commencing with the quarter ending December 31, 2006), or
year-to-date information until 12-month trailing information is available by the
Master Servicer and such updated report shall be delivered to the Trustee in the
calendar month following receipt by the Master Servicer of such updated trailing
or year-to-date operating statements and related rent rolls for such Mortgaged
Property.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Master Servicer the information required of it pursuant to this
Section 3.13(d) with respect to Specially Serviced Loans and Serviced REO Loans
commencing in August 2006, in addition to within 45 days after its receipt of
any operating statement and related rent rolls for any related Mortgaged
Property or Serviced REO Property.
(e) In connection with their servicing of the Mortgage Loans
(other than the Non-Serviced Mortgage Loan), the Master Servicer and the
Special Servicer shall provide to each other and to the Trustee, written
notice of any event that comes to their knowledge with respect to a Mortgage
Loan or Serviced REO Property that the Master Servicer or the Special
Servicer, respectively, determines, in accordance with the Servicing
Standard, would have a material adverse effect on such Mortgage Loan or
Serviced REO Property, which notice shall include an explanation as to the
reason for such material adverse effect.
(f) At least four Business Days prior to each Servicer Remittance
Date, the Special Servicer shall deliver, or cause to be delivered, to the
Master Servicer and, upon the request of any of the Trustee, the Depositor,
the Controlling Class or any Rating Agency, to such requesting party, the
CMSA Specially Serviced Loan File with respect to the Specially Serviced
Loans (and, if applicable, the related REO Properties), providing the
required information as of the Determination Date (or, upon the reasonable
request of the Master Servicer, data files in a form acceptable to the Master
Servicer), which CMSA Specially Serviced Loan File shall include data, to
enable the Master Servicer to produce the following CMSA Supplement Reports:
(i) a Delinquent Loan Status Report; (ii) an Historical Liquidation Report;
(iii) an Historical Loan Modification and corrected Mortgage Loan Report;
(iv) an REO Status Report; (v) Comparative Financial Status Reports; (vi)
CMSA Loan Periodic Update File; (vii) a CMSA Property File; (viii) a CMSA
Financial File; (ix) a NOI Adjustment Worksheet; (x) an Operating Statement
Analysis Report; and (xi) the CMSA Advance Recovery Report. Such reports or
data shall be presented in writing and on a computer readable magnetic medium
or other electronic format acceptable to the Master Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Master Servicer and, upon the request of any of the Trustee, the
Depositor, the Controlling Class or any Rating Agency, to such requesting
party, without charge, the following materials for Specially Serviced Loans,
in each case to the extent that such materials or the information on which
they are based have been received by the Special Servicer:
(i) At least annually, on or before June 1 of each year, commencing
with 2007, with respect to each Specially Serviced Loan and Serviced REO
Loan, an Operating Statement Analysis Report for the related Mortgaged
Property or Serviced REO Property as of the end of the preceding calendar
year, together with copies of the operating statements and rent rolls for
the related Mortgaged Property or Serviced REO Property as of the end of
the preceding calendar year (but only to the extent the related Borrower
is required by the Mortgage to deliver, or otherwise agrees to provide,
such information and, with respect to operating statements and rent rolls
for Specially Serviced Loans and REO Properties, only to the extent
requested by the Special Servicer) and for the current trailing 12 months,
if available, or year-to-date. The Special Servicer shall use its best
reasonable efforts to obtain said annual and other periodic operating
statements and related rent rolls with respect to each Mortgaged Property
constituting security for a Specially Serviced Loan and each Serviced REO
Property, which efforts shall include a letter sent to the related
Borrower or other appropriate party each quarter (followed up with
telephone calls) requesting such annual and other periodic operating
statements and rent rolls until they are received.
(ii) Within 45 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property relating to a
Specially Serviced Loan, an NOI Adjustment Worksheet for such Mortgaged
Property or Serviced REO Property (with the annual operating statements
attached thereto as an exhibit); provided, however, that, with the consent
of the Master Servicer, the Special Servicer may instead provide data
files in a form acceptable to the Master Servicer. The Special Servicer
will use the "Normalized" column from the NOI Adjustment Worksheet to
update the full year-end data on any Operating Statement Analysis Report
and will use any operating statements received with respect to any
Mortgaged Property which is a Serviced REO Property or constitutes
security for a Specially Serviced Loan to update the Operating Statement
Analysis Report for such Mortgaged Property.
The Special Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property securing a Specially Serviced Loan and
Serviced REO Property. The Operating Statement Analysis Report for each
Mortgaged Property which constitutes security for a Specially Serviced Loan or
is an Serviced REO Property is to be updated by the Special Servicer and such
updated report delivered to the Master Servicer within 45 days after receipt by
the Special Servicer of updated operating statements for each such Mortgaged
Property; provided, however, that, with the consent of the Master Servicer, the
Special Servicer may instead provide data files in a form acceptable to the
Master Servicer. The Special Servicer shall provide each such report to the
Master Servicer in the then applicable CMSA format.
(h) The Trustee shall be entitled to rely conclusively on and
shall not be responsible for the content or accuracy of any information
provided to it by the Master Servicer or the Special Servicer pursuant to
this Agreement.
Section 3.14 [Reserved].
Section 3.15 [Reserved].
Section 3.16 Access to Certain Documentation. The Master Servicer
and Special Servicer shall provide to any Certificateholders and the Serviced
Companion Loan Noteholders that are federally insured financial institutions,
the Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder or Serviced
Companion Loan Noteholder is subject, access to the documentation regarding the
Mortgage Loans or the Serviced Whole Loans, as applicable, that it is servicing
required by applicable regulations of the Federal Reserve Board, FDIC, OTS or
any such governmental or regulatory body, such access being afforded without
charge but only upon reasonable written request and during normal business hours
at the offices of the Master Servicer or Special Servicer. In addition, upon
reasonable prior written notice to the Master Servicer or the Special Servicer,
as the case may be, the Depositor or their accountants or other representatives
shall have access to review the documents, correspondence and records of the
Master Servicer or the Special Servicer, as the case may be, as they relate to a
Mortgaged Property and any Serviced REO Property during normal business hours at
the offices of the Master Servicer or the Special Servicer, as the case may be.
Nothing in this Section 3.16 shall detract from the obligation of the Master
Servicer and Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Borrowers, and the failure of the
Master Servicer and Special Servicer to provide access as provided in this
Section 3.16 as a result of such obligation shall not constitute a breach of
this Section 3.16.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, Serviced Companion Loan
Noteholder or any regulatory authority that may exercise authority over a
Certificateholder or Serviced Companion Loan Noteholder, the Master Servicer and
the Special Servicer may each require payment from such Certificateholder or
Serviced Companion Loan Noteholder (to the extent permitted in the related
Co-Lender Agreement) of a sum sufficient to cover the reasonable costs and
expenses of providing such information or access, including copy charges and
reasonable fees for employee time and for space; provided that no charge may be
made if such information or access was required to be given or made available
under applicable law. In connection with providing Certificateholders access to
the information described in the preceding paragraph the Master Servicer and the
Special Servicer may require (prior to affording such access) a written
confirmation executed by the requesting Person substantially in such form as may
be reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book Entry Certificates and will keep
such information confidential.
Upon the reasonable request of any Certificateholder identified to
the Master Servicer to the Master Servicer's reasonable satisfaction, the Master
Servicer may provide (or forward electronically) (at the expense of such
Certificateholder) copies of any operating statements, rent rolls and financial
statements obtained by the Master Servicer or the Special Servicer; provided
that, in connection therewith, the Master Servicer may require a written
confirmation executed by the requesting Person substantially in such form as may
be reasonably acceptable to the Master Servicer or Special Servicer, generally
to the effect that such Person is a Holder of Certificates or a beneficial
holder of Book Entry Certificates and will keep such information confidential.
Section 3.17 Title and Management of REO Properties and REO
Accounts. (a) In the event that title to any Mortgaged Property is acquired for
the benefit of Certificateholders (and, in the case of the Serviced Whole Loans,
the related Serviced Companion Loan Noteholders) in foreclosure, by deed in lieu
of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee
(which shall not include the Master Servicer), or a separate Trustee or
co-Trustee, on behalf of the Trust Fund (and, in the case of the Serviced Whole
Loans, the related Serviced Companion Loan Noteholders). The Special Servicer,
on behalf of the Trust Fund (and, in the case of the Serviced Whole Loans, the
related Serviced Companion Loan Noteholders), shall dispose of any Serviced REO
Property prior to the close of the third calendar year following the year in
which the Trust Fund acquires ownership of such Serviced REO Property for
purposes of Section 860G(a)(8) of the Code, unless (i) the Special Servicer on
behalf of the Lower-Tier REMIC has applied for an extension of such period
pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the
Special Servicer shall sell such Serviced REO Property within the applicable
extension period or (ii) the Special Servicer seeks and subsequently receives an
Opinion of Counsel (which opinion shall be an expense of the Trust Fund and, in
the case of a Serviced Whole Loan, the related Mortgage Loan, or in the case of
a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata
basis as between the related Mortgage Loan and any related Serviced Pari Passu
Companion Loan (based on their respective outstanding principal balance)),
addressed to the Special Servicer and the Trustee, to the effect that the
holding by the Trust Fund of such Serviced REO Property for an additional
specified period will not cause such Serviced REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) at any time that any Certificate is outstanding, in which
event such period shall be extended by such additional specified period subject
to any conditions set forth in such Opinion of Counsel. The Special Servicer, on
behalf of the Trust Fund (and, in the case of the Serviced Whole Loans, the
related Serviced Companion Loan Noteholders), shall dispose of any Serviced REO
Property held by the Trust Fund prior to the last day of such period (taking
into account extensions) by which such Serviced REO Property is required to be
disposed of pursuant to the provisions of the immediately preceding sentence in
a manner provided under Section 3.18 hereof. In the case of the Trust Fund's
beneficial interest in any REO Property acquired by the Other Trustee pursuant
to the Other Pooling and Servicing Agreement, the Special Servicer shall
coordinate with the Other Special Servicer with respect to any REO extension on
behalf of the Trust Fund. The Special Servicer shall manage, conserve, protect
and operate each Serviced REO Property for the Certificateholders (and, in the
case of the Serviced Whole Loans, the related Serviced Companion Loan
Noteholders) solely for the purpose of its prompt disposition and sale in a
manner which does not cause such Serviced REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a)).
(b) The Special Servicer shall have full power and authority,
subject only to the Servicing Standard and the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with
any Serviced REO Property as are consistent with the manner in which the
Special Servicer manages and operates similar property owned or managed by
the Special Servicer or any of its Affiliates, all on such terms and for such
period as the Special Servicer deems to be in the best interests of
Certificateholders and, in the case of the Serviced Whole Loans, the related
Serviced Companion Loan Noteholders and, in connection therewith, the Special
Servicer shall agree to the payment of management fees that are consistent
with general market standards. Consistent with the foregoing, the Special
Servicer shall cause or permit to be earned with respect to such Serviced REO
Property any "net income from foreclosure property," within the meanings of
Section 860G(c) of the Code, which is subject to tax under the REMIC
Provisions, only if it has determined, and has so advised the Trustee in
writing, that the earning of such income on a net after-tax basis could
reasonably be expected to result in a greater recovery on behalf of
Certificateholders (and, in the case of the Serviced Whole Loans, the related
Serviced Companion Loan Noteholders) than an alternative method of operation
or rental of such Serviced REO Property that would not be subject to such a
tax.
The Special Servicer shall segregate and hold all revenues received
by it with respect to any Serviced REO Property separate and apart from its own
funds and general assets and shall establish and maintain with respect to any
Serviced REO Property a segregated custodial account (each, an "REO Account"),
each of which shall be an Eligible Account and shall be entitled "Xxxxx Fargo
Bank, N.A., as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates REO Account." With respect to a Serviced REO Property securing a
Serviced Whole Loan, the Special Servicer shall establish an REO Account solely
with respect to such property (each such account, a "Serviced Whole Loan REO
Account"), each of which shall be an Eligible Account and shall be entitled
"Xxxxx Fargo Bank, N.A., as Trustee, in trust for Holders of Deutsche Mortgage &
Asset Receiving Corporation, COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates and the related Serviced Companion Loan Noteholders REO Account,"
to be held for the benefit of the Certificateholders and the related Serviced
Companion Loan Noteholders. The Special Servicer shall be entitled to withdraw
for its account any interest or investment income earned on funds deposited in
an REO Account or a Serviced Whole Loan REO Account to the extent provided in
Section 3.07(b). The Special Servicer shall deposit or cause to be deposited REO
Proceeds in the REO Account or the applicable Serviced Whole Loan REO Account
within one Business Day after receipt of such REO Proceeds, and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such Serviced REO Property and for other Property Protection Expenses with
respect to such Serviced REO Property, including:
(i) all insurance premiums due and payable in respect of any
Serviced REO Property;
(ii) all real estate taxes and assessments in respect of any
Serviced REO Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any Serviced REO Property
including, if applicable, the payments of any ground rents in respect of
such Serviced REO Property; and
(iv) any taxes imposed on the Lower-Tier REMIC in respect of net
income from foreclosure property in accordance with Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above, the Master Servicer shall
or, on an emergency basis, in accordance with Section 3.24(b), the Special
Servicer may, make such Advance unless the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
that such Property Advance would constitute a Nonrecoverable Advance (provided
that with respect to advancing insurance premiums or delinquent tax assessments
the Master Servicer shall comply with the provisions of the second to last
paragraph in Section 3.24(d)) and if the Master Servicer does not make any such
Advance, the Trustee, to the extent the Trustee has actual knowledge of the
Master Servicer's failure to make such Advance, shall make such Advance, unless
in each case, the Special Servicer, the Master Servicer or the Trustee, as
applicable, determines that such Advance would be a Nonrecoverable Advance. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Special Servicer or the Master Servicer, as applicable, that an Advance, if
made, would be a Nonrecoverable Advance. The Trustee, when making an independent
determination whether or not a proposed Advance would be a Nonrecoverable
Advance, shall be subject to the standards applicable to the Master Servicer
hereunder. The Special Servicer, Master Servicer or the Trustee, as applicable,
shall be entitled to reimbursement of such Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence, to the extent permitted
by Section 3.06. The Special Servicer shall withdraw from each REO Account or
Serviced Whole Loan REO Account, as applicable, and remit to the Master Servicer
for deposit into the Collection Account or the applicable Serviced Whole Loan
Collection Account, as applicable, on a monthly basis prior to or on the related
Due Date the Net REO Proceeds received or collected from each Serviced REO
Property, except that in determining the amount of such Net REO Proceeds, the
Special Servicer may retain in each REO Account or Serviced Whole Loan REO
Account, as applicable, reasonable reserves for repairs, replacements and
necessary capital improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit any New Lease to be entered into, renewed or
extended, if the New Lease by its terms will give rise to any income
that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease, other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on any Serviced REO
Property, other than the repair or maintenance thereof or the
completion of a building or other improvement thereon, and then only
if more than ten percent of the construction of such building or
other improvement was completed before default on the related
Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate
any Serviced REO Property on any date more than 90 days after its
date of acquisition by the Trust Fund, unless such Person is an
Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund, or in the case of a Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as
between the related Mortgage Loan and any related Serviced Pari Passu Companion
Loan (based on their respective outstanding principal balance)) to the effect
that such action will not cause such Serviced REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) at any time that it is held by the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor, the fees and expenses of which shall be an expense of
the Trust Fund (and, in the case of the Serviced Whole Loans, first of the
related Serviced B Loan, if any, and second, to the extent such expense remains
unpaid, the related Mortgage Loan, or in the case of a Serviced Whole Loan with
a Serviced Pari Passu Companion Loan, on a pro rata basis as between the related
Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their
respective outstanding principal balance)) and payable out of REO Proceeds, for
the operation and management of any Serviced REO Property, within 90 days of the
Trust Fund's acquisition thereof (unless the Special Servicer shall have
provided the Trustee with an Opinion of Counsel that the operation and
management of any Serviced REO Property other than through an Independent
Contractor shall not cause such Serviced REO Property to fail to qualify as
"foreclosure property" within the meaning of Code Section 860G(a)(8)) (which
opinion shall be an expense of the Trust Fund, or in the case of a Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as
between the related Mortgage Loan and any related Serviced Pari Passu Companion
Loan (based on their respective outstanding principal balance)), provided that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property and shall
not be inconsistent herewith;
(ii) any such contract shall require, or shall be administered
to require, that the Independent Contractor pay all costs and
expenses incurred in connection with the operation and management of
such Serviced REO Property, including those listed above, and remit
all related revenues (net of such costs and expenses) to the Special
Servicer as soon as practicable, but in no event later than 30 days
following the receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations to the Trust Fund, the
Trustee on behalf of the Certificateholders or, in the case of a
Serviced Whole Loan, the related Serviced B Loan Noteholders, with
respect to the operation and management of any such Serviced REO
Property; and
(iv) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such Serviced REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) Promptly following any acquisition by the Special Servicer of
a Serviced REO Property on behalf of the Trust Fund, the Special Servicer
shall notify the Master Servicer thereof, and, upon receipt of such notice,
the Special Servicer shall obtain an Updated Valuation thereof, but only in
the event that any Updated Valuation with respect thereto is more than 12
months old and the Special Servicer has no actual knowledge of any material
adverse change in circumstances that, consistent with the Servicing Standard,
would call into question the validity of such Updated Appraisal, in order to
determine the fair market value of such Serviced REO Property and shall
notify the Depositor and the Master Servicer and with respect to a Serviced
Whole Loan, the holder of the related B Loan, if any, of the results of such
Appraisal. Any such Appraisal shall be conducted in accordance with Appraisal
Institute standards and the cost thereof shall be an expense of the Trust
Fund (allocated, to the Principal Balance Certificates in reverse-sequential
order) and, in the case of the Serviced Whole Loans, first to the related
Serviced B Loan, if any, and second, to the extent such cost remains unpaid,
to the related Mortgage Loan, or in the case of a Serviced Whole Loan with a
Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance). The Special
Servicer shall obtain a new Updated Valuation or a letter update every 12
months thereafter until the Serviced REO Property is sold.
(d) When and as necessary, the Special Servicer shall send to the
Trustee a statement prepared by the Special Servicer setting forth the amount
of net income or net loss, as determined for federal income tax purposes,
resulting from the operation and management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in
respect of, any Serviced REO Property in accordance with Sections 3.17(a) and
3.17(b).
(e) Upon the disposition of any Serviced REO Property in
accordance with this Section 3.17, the Special Servicer shall calculate the
Excess Liquidation Proceeds allocable to a Mortgage Loan or the applicable
Serviced Whole Loan, if any, realized in connection with such sale.
Section 3.18 Sale of Specially Serviced Loans and REO Properties.
(a) Each of the Controlling Class Representative and the Special Servicer (in
that order) may sell or purchase, or permit the sale or purchase of, a Mortgage
Loan only on the terms and subject to the conditions set forth in this Section
3.18 or as otherwise expressly provided in or contemplated by Section 2.03(d)
and Section 9.01 or in an applicable Co-Lender Agreement.
(b) Within 60 days after a Mortgage Loan (other than the
Non-Serviced Mortgage Loan) becomes a Defaulted Mortgage Loan (or, in the
case of a Balloon Loan, if a payment default shall have occurred with respect
to the related Balloon Payment, then after a Servicing Transfer Event shall
have occurred with respect to such Balloon Payment default), the Special
Servicer shall determine the fair value of such Mortgage Loan in accordance
with the Servicing Standard; provided, however, that such determination shall
be made without taking into account any effect the restrictions on the sale
of such Mortgage Loan contained herein may have on the value of such
Defaulted Mortgage Loan; provided, further, that if the Special Servicer is
then in the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, the Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within 30
days) after its receipt of such new Appraisal. The Special Servicer shall
recalculate, from time to time, but not less often than every 90 days, its
determination of the fair value of a Defaulted Mortgage Loan based upon
changed circumstances, new information or otherwise, in accordance with the
Servicing Standard. The Special Servicer shall notify the Trustee, the Master
Servicer, each Rating Agency and the Controlling Class Representative (and
with respect to the Serviced Whole Loans, the Directing Certificateholder and
each Serviced Companion Loan Noteholder or if such Serviced Companion Loan
has been securitized, the applicable Serviced Companion Loan Trustee (who
shall promptly notify, in writing, the Directing Certificateholder (as
defined in the related Serviced Companion Loan Securitization Agreement) of
that securitization or an analogous party) promptly upon its fair value
determination and any adjustment thereto. In determining the fair value of
any Defaulted Mortgage Loan, the Special Servicer shall take into account,
among other factors, the period and amount of the delinquency on such
Mortgage Loan or Serviced Whole Loan, the occupancy level and physical
condition of the related Mortgaged Property, the state of the local economy
in the area where the Mortgaged Property is located, the expected recovery
from the Mortgage Loan if the Special Servicer were to pursue a workout
strategy, and the time and expense associated with a purchaser's foreclosing
on the related Mortgaged Property. In addition, the Special Servicer shall
refer to all other relevant information obtained by it or otherwise contained
in the Mortgage File; provided that the Special Servicer shall take account
of any change in circumstances regarding the related Mortgaged Property known
to the Special Servicer that has occurred subsequent to, and that would, in
the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in the most recent related
Appraisal. Furthermore, the Special Servicer may consider available objective
third party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the
Special Servicer, concerning the market for distressed real estate loans and
the real estate market for the subject property type in the area where the
related Mortgaged Property is located. The Special Servicer may, to the
extent it is reasonable to do so in accordance with the Servicing Standard,
conclusively rely on any opinions or reports of qualified Independent experts
in real estate or commercial mortgage loan matters with at least five years'
experience in valuing or investing in loans similar to the subject Specially
Serviced Loan, selected with reasonable care by the Special Servicer, in
making such determination. All reasonable costs and expenses incurred by the
Special Servicer pursuant to this Section 3.18(b) shall constitute, and be
reimbursable as, Property Advances. The other parties to this Agreement shall
cooperate with all reasonable requests for information made by the Special
Servicer in order to allow the Special Servicer to perform its duties
pursuant to this Section 3.18(b).
(c) Subject to the terms set forth in Section 2.03 and with
respect to any Whole Loan, subject to the purchase option of the related B
Loan holder in accordance with the related Co-Lender Agreement, if any, and
subject to any purchase option that a mezzanine lender may have in accordance
with the related mezzanine intercreditor agreement, in the event a Mortgage
Loan (other than the Non-Serviced Mortgage Loan) becomes a Defaulted Mortgage
Loan, the Controlling Class Representative and the Special Servicer (but only
if the Controlling Class Representative or the Special Servicer, as
applicable, is not an affiliate of the related Mortgage Loan Seller) (in that
order) shall have an assignable option (a "Purchase Option") to purchase such
Defaulted Mortgage Loan (but not any Serviced Companion Loan) from the Trust
Fund at a price (the "Option Price") equal to (i) the Repurchase Price, if
the Special Servicer has not yet determined the fair value of the Defaulted
Mortgage Loan, or (ii) the fair value of the Defaulted Mortgage Loan as
determined by the Special Servicer in the manner described in Section 3.18(b)
and in accordance with the Servicing Standard, if the Special Servicer has
made such fair value determination. Any holder of a Purchase Option may sell,
transfer, assign or otherwise convey its Purchase Option with respect to any
Defaulted Mortgage Loan to any party (other than a Person whose purchase of
such Defaulted Loan would violate the terms of any related Co-Lender
Agreement or mezzanine intercreditor agreement) at any time after the related
Mortgage Loan becomes a Defaulted Mortgage Loan. The transferor of any
Purchase Option shall notify the Trustee, the Special Servicer and the Master
Servicer of such transfer and such notice shall include the transferee's
name, address, telephone number, facsimile number and appropriate contact
person(s) and shall be acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Controlling Class Representative shall
have the right to exercise its Purchase Option prior to any exercise of the
Purchase Option by the Special Servicer; provided, however, if the Purchase
Option is not exercised by the Controlling Class Representative or any
assignee thereof within 60 days after the fair value of the related Mortgage
Loan was determined as described in Section 3.18(b), then the Special
Servicer shall have the right to exercise its Purchase Option prior to any
exercise by the Controlling Class Representative and the Special Servicer or
its assignee may exercise such Purchase Option at any time during the 15-day
period immediately following the expiration of such 60-day period. Following
the expiration of such 15-day period, the Controlling Class Representative
shall again have the exclusive right to exercise the Purchase Option. If not
exercised earlier, the Purchase Option with respect to any Defaulted Mortgage
Loan will automatically terminate (i) once the related Defaulted Mortgage
Loan is no longer a Defaulted Mortgage Loan; provided, however, that if such
Mortgage Loan subsequently becomes a Defaulted Mortgage Loan, the related
Purchase Option shall again be exercisable after a new fair value calculation
is made pursuant to clause (b) above, (ii) upon the acquisition, by or on
behalf of the Trust Fund, of title to the related Mortgaged Property through
foreclosure or deed in lieu of foreclosure, (iii) the modification or
pay-off, in full or at a discount, of such Defaulted Mortgage Loan in
connection with a workout, (iv) upon a repurchase of a Defaulted Mortgage
Loan by the applicable Mortgage Loan Seller due to the Mortgage Loan Seller's
breach of a representation or document defect with respect to such Defaulted
Mortgage Loan and (v) the purchase of any B Loan holder or mezzanine lender
in accordance with the related Co-Lender Agreement, or mezzanine
intercreditor agreement, as applicable.
(d) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, the holder
(whether the original grantee of such option or any subsequent transferee) of
the Purchase Option may exercise the Purchase Option by providing the Master
Servicer, the Special Servicer and the Trustee at least five days prior
written notice thereof (the "Purchase Option Notice"), in the form of Exhibit
N attached hereto, which notice shall identify the Person that, on its own or
through an Affiliate, will acquire the related Mortgage Loan upon closing and
shall specify a cash exercise price at least equal to the Option Price. The
Purchase Option Notice shall be delivered in the manner specified in Section
3.18(c). The exercise of any Purchase Option pursuant to this clause (d)
shall be irrevocable.
(e) If the Special Servicer or, if the Controlling Class
Representative is an affiliate of the Special Servicer, the Controlling Class
Representative or any of their respective Affiliates is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, the Master Servicer shall determine (or, if the Special Servicer has
made such determination, shall confirm) the fair value and must retain an
appraiser or other Independent third party (either of whom must be an MAI)
(at the expense of the Trust Fund, or in the case of a Serviced Whole Loan
with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance)), that the Master
Servicer reasonably believes has the requisite experience to assist it to
determine the fair value (such person, the "Third Party Appraiser") and
obtain from such third party a determination as soon as reasonably
practicable after the Master Servicer has received the written notice, of
whether the Option Price represents fair value for the Defaulted Mortgage
Loan; provided that, if the Master Servicer requests the Third Party
Appraiser to perform a new Appraisal with respect to the related Mortgaged
Property, then the Third Party Appraiser retained by the Master Servicer
shall make its fair value determination with respect to such Mortgage Loan as
soon as reasonably practicable (but in any event within forty-five (45) days)
after the completion of such new Appraisal. Such fair value determination
made by the Master Servicer shall be made in accordance with the Servicing
Standard; provided that, absent manifest error, the Master Servicer may
conclusively rely on the opinion of the Third Party Appraiser in making such
determination; provided that, in choosing such Third Party Appraiser the
Master Servicer shall use reasonable care in accordance with the Servicing
Standard. In determining the fair value of any Defaulted Mortgage Loan, the
Third Party Appraiser retained by the Master Servicer shall take into
account, among other factors, the period and amount of the delinquency on
such Mortgage Loan or Serviced Whole Loan, the occupancy level and physical
condition of the related Mortgaged Property, the state of the local economy
in the area where the Mortgaged Property is located, the expected recovery
from the Mortgage Loan if a workout strategy were pursued and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Third Party Appraiser retained by the Master
Servicer shall refer to the Servicing Standard and all other relevant
information delivered to it by the Master Servicer or otherwise contained in
the Mortgage File; provided that the Third Party Appraiser retained by the
Master Servicer shall take account of any known change in circumstances
regarding the related Mortgaged Property that has occurred subsequent to, and
that would, in its reasonable judgment, materially affect the value of the
related Mortgaged Property. Furthermore, the Third Party Appraiser retained
by the Master Servicer shall consider all available objective third-party
information obtained from generally available sources, concerning the market
for distressed real estate loans and the real estate market for the subject
property type in the area where the related Mortgaged Property is located.
The Third Party Appraiser retained by the Master Servicer may rely on the
opinion and reports of other parties in making such determination and on the
most current Appraisal obtained for the related Mortgaged Property pursuant
to this Agreement. The costs of the Third Party Appraiser and all appraisals,
inspection reports and broker opinions of value, reasonably incurred by such
Third Party Appraiser or otherwise incurred pursuant to this subsection shall
be advanced by the Master Servicer and shall constitute, and be reimbursable
as Property Advances (or if such advance is deemed to be a Nonrecoverable
Advance such costs shall be reimbursable as Trust Fund expenses from the
Collection Account pursuant to Section 3.06(b)) or the applicable Serviced
Whole Loan Collection Account pursuant to Section 3.06(c). The other parties
to this Agreement shall cooperate with all reasonable requests for
information.
(f) Unless and until the Purchase Option with respect to a
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue such
other resolution strategies available hereunder with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate consistent with the
Servicing Standard; provided, however, the Special Servicer will not be
permitted to sell the Defaulted Mortgage Loan other than in connection with
the exercise of the related Purchase Option, or in connection with a
repurchase under Section 2.03 by the related Mortgage Loan Seller, or, with
respect to a Serviced Whole Loan or any Mortgage Loan or Serviced Whole Loan
with a related mezzanine loan, the exercise of the purchase option, if any,
set forth in the related Co-Lender Agreement or mezzanine intercreditor
agreement, as applicable, by the holder of the related B Loan or mezzanine
lender. In connection with the foregoing, the Special Servicer may charge
prospective bidders, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit
such amounts into the Collection Account or in the case of any Serviced Whole
Loan, the applicable Serviced Whole Loan Collection Account or the REO
Accounts.
(g) The Special Servicer shall use reasonable efforts to solicit
offers for each Serviced REO Property in such manner as will be reasonably
likely to realize a fair price within the time period provided for by Section
3.17(a). The Special Servicer (with the consent of the Directing
Certificateholder) shall accept the first (and, if multiple bids are
contemporaneously received, highest) cash bid received from any Person that
constitutes a fair price for such Serviced REO Property. If the Special
Servicer determines, in its good faith and reasonable judgment, that it will
be unable to realize a fair price for any Serviced REO Property within the
time constraints imposed by Section 3.17(a), then the Special Servicer (with
the consent of the Directing Certificateholder) shall dispose of such
Serviced REO Property upon such terms and conditions as the Special Servicer
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee, the Master Servicer and
the Directing Certificateholder, not less than ten Business Days' prior written
notice of its intention to sell any Serviced REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any Serviced REO
Property pursuant hereto.
(h) Whether any cash bid constitutes a fair price for any Serviced
REO Property, as the case may be, for purposes of Section 3.18(g), shall be
determined by the Special Servicer, if the highest bidder is a Person other
than the Special Servicer or an Affiliate of the Special Servicer, and by the
Trustee, if the highest bidder is the Special Servicer or an Affiliate of the
Special Servicer; provided, however, that no bid from an Interested Person
shall constitute a fair price unless (i) it is the highest bid received and
(ii) at least two other bids are received from independent third parties. In
determining whether any offer received from an Interested Person represents a
fair price for any such Serviced REO Property, the Trustee shall be supplied
with and shall rely on the most recent appraisal or Updated Appraisal
conducted in accordance with this Agreement within the preceding 12-month
period or in the absence of any such appraisal, on a narrative appraisal
prepared by an appraiser selected by the Special Servicer if the Special
Servicer or an Affiliate of the Special Servicer is not making an offer with
respect to a Serviced REO Property (or by the Master Servicer if the Special
Servicer is making such an offer). The cost of any such narrative appraisal
shall be covered by, and shall be reimbursable as, a Property Advance. In
determining whether any offer from a Person other than an Interested Person
constitutes a fair price for any such Serviced REO Property, the Special
Servicer shall take into account (in addition to the results of any
appraisal, updated appraisal or narrative appraisal that it may have obtained
pursuant to this Agreement within the prior 12 months), and in determining
whether any offer from an Interested Person constitutes a fair price for any
such Serviced REO Property, any appraiser shall be instructed to take into
account, as applicable, among other factors, the period and amount of the
occupancy level and physical condition of the Mortgaged Property or Serviced
REO Property, the state of the local economy and the obligation to dispose of
any Serviced REO Property within the time period specified in Section
3.17(a). The Repurchase Price (which, in connection with the administration
of a Serviced REO Property related to a Serviced Whole Loan, shall be
construed and calculated as if the loans in such Serviced Whole Loan together
constitute a single Mortgage Loan thereunder) for any Serviced REO Property
shall in all cases be deemed a fair price.
(i) Subject to subsections (g) and (h) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Serviced REO
Property, and the applicable collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge for its
own account prospective offerors, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of
information pertaining to such sales or exchanging offers without obligation
to deposit such amounts into the Collection Account or in the case of the
Serviced Whole Loans, the applicable Serviced Whole Loan Collection Account.
Any sale of a Serviced REO Property shall be final and without recourse to
the Trustee or the Trust Fund (except such recourse to the Trust Fund imposed
by those representations and warranties typically given in such transactions,
any prorations applied thereto and any customary closing matters), and if
such sale is consummated in accordance with the terms of this Agreement, none
of the Special Servicer, the Master Servicer, the Depositor or the Trustee
shall have any liability to any Certificateholder or Serviced Companion Loan
Noteholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(j) Any sale of a Serviced REO Property shall be for cash only.
(k) Notwithstanding any of the foregoing paragraphs of this
Section 3.18, the Special Servicer shall not be obligated to accept the
highest cash offer if the Special Servicer determines, in its reasonable and
good faith judgment, that rejection of such offer would be in the best
interests of the Certificateholders and, in the case of a Serviced Whole
Loan, in the best interests of the related Serviced Companion Loan
Noteholders, as a collective whole, and the Special Servicer may accept a
lower cash offer (from any Person other than itself or an Affiliate) if it
determines, in its reasonable and good faith judgment, that acceptance of
such offer would be in the best interests of the Certificateholders (for
example, if the prospective buyer making the lower offer is more likely to
perform its obligations or the terms offered by the prospective buyer making
the lower offer are more favorable) and, in the case of any Serviced Whole
Loan, in the best interests of the related Serviced Companion Loan
Noteholders, as a collective whole.
(l) Upon receipt of notice that the Desert Passage Whole Loan, as
applicable, has become a defaulted mortgage loan (in accordance with the BACM
2006-1 Pooling and Servicing Agreement), the Controlling Class Representative
shall have the right to purchase only the Desert Passage Mortgage Loan from
the Trust at a purchase price determined in accordance with Section 3.18 of
the BACM 2006-1 Pooling and Servicing Agreement (by the parties set forth
therein). Such option shall be exercised in accordance with and shall
otherwise be on the same terms as the terms of Section 3.18 of the BACM
2006-1 Pooling and Servicing Agreement.
(m) With respect to the Valley Forge Mortgage Loan, upon such
Mortgage Loan becoming a Defaulted Mortgage Loan and with respect to the
Buckeye Portfolio Mortgage Loan if an event of default enumerated in Section
8(a) of the Buckeye Portfolio Intercreditor Agreement occurs, the Trustee
shall promptly notify, in writing, the holder of the related B Loan. The
Purchase Option with respect to the Valley Forge Mortgage Loan and the
Buckeye Portfolio Mortgage Loan, as applicable, shall be subject to the
purchase rights of the holder of the related B Loan in accordance with the
terms of and as set forth in the related Co-Lender Agreement. With respect to
each Serviced Whole Loan with a Serviced Pari Passu Companion Loan, upon such
Mortgage Loan becoming a Defaulted Mortgage Loan, the Trustee shall promptly
notify, in writing, each related Serviced Pari Passu Companion Loan
Noteholder (such notice shall include the option price for such Serviced Pari
Passu Companion Loan as determined by the Special Servicer based on the same
methodology for determining the fair value of the related Mortgage Loan) or
if such Serviced Pari Passu Companion Loan has been securitized, the
applicable Serviced Companion Loan Trustee (who shall be instructed to
promptly notify, in writing, the "controlling class representative" (as
defined in the related Serviced Companion Loan Securitization Agreement) of
that securitization or an analogous party). Upon receipt of such notice, the
related "controlling class representative" (as defined in the related
Serviced Companion Loan Securitization Agreement) or analogous party shall
have the right, at its option, to purchase its respective Serviced Pari Passu
Companion Loan from the trust established pursuant to the related Serviced
Companion Loan Securitization Agreement for a price equal to the Option
Price, determined in accordance with Section 3.18 hereof, with respect to
such Serviced Companion Loan. Such Purchase Option shall otherwise be on the
same terms as the Purchase Option provided to the Controlling Class
Representative in Section 3.18(c) mutatis mutandis.
Section 3.19 Additional Obligations of the Master Servicer and the
Special Servicer; Inspections. (a) The Master Servicer (at its own expense) (or,
with respect to Specially Serviced Loans and Serviced REO Properties, the
Special Servicer) shall inspect or cause to be inspected each Mortgaged Property
securing a Mortgage Loan that it is servicing at such times and in such manner
as is consistent with the Servicing Standard, but in any event shall inspect
each Mortgaged Property with an Allocated Loan Amount of (A) $2,000,000 or more
at least once every 12 months and (B) less than $2,000,000 at least once every
24 months, in each case commencing in 2007 (or at such decreased frequency as
each Rating Agency shall have confirmed in writing to the Master Servicer will
not result a downgrade, qualification or withdrawal of the then-current ratings
assigned to any Class of the Certificates); provided, however, that if any
Mortgage Loan or Serviced Whole Loan becomes a Specially Serviced Loan, the
Special Servicer is required to inspect or cause to be inspected the related
Mortgaged Property as soon as practicable but in no event less than 60 days
after the Mortgage Loan remains a Specially Serviced Loan; provided, further,
that the Master Servicer will not be required to inspect a Mortgaged Property
that has been inspected in the previous six months. The reasonable cost of each
such inspection performed by the Special Servicer will be paid by the Master
Servicer as a Property Advance or if such Property Advance would not be
recoverable, as an Additional Trust Fund Expense. The Master Servicer or the
Special Servicer, as applicable, will be required to prepare a written report of
the inspection describing, among other things, the condition of and any damage
to the Mortgaged Property securing a Mortgage Loan that it is servicing and
specifying the existence of any material vacancies in such Mortgaged Property,
any sale, transfer or abandonment of such Mortgaged Property of which it has
actual knowledge, any material adverse change in the condition of the Mortgaged
Property, or any visible material waste committed on applicable Mortgaged
Property. The Master Servicer or Special Servicer, as applicable, shall send to
the Rating Agencies and, upon request, to the Underwriters within 20 days of
completion, each inspection report, unless the Rating Agencies and, upon
request, the Underwriters, as applicable, notify the Master Servicer or Special
Servicer, as applicable, that it does not want such reports.
(b) With respect to each Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan, the Master Servicer (or
the Special Servicer, in the case of a Specially Serviced Loan) shall enforce
the Trustee's rights with respect to the Manager under the related Loan
Documents and Management Agreement, if any.
(c) With respect to any Mortgage Loan (other than a Specially
Serviced Loan and the Non-Serviced Mortgage Loan) that has been subject to a
Principal Prepayment and a Prepayment Interest Shortfall (other than at the
request of or with the consent of the Controlling Class Representative), the
Master Servicer shall deliver to the Trustee on each Servicer Remittance Date
for deposit in the Lower-Tier Distribution Account, without any right of
reimbursement therefor, a cash payment (a "Servicer Prepayment Interest
Shortfall"), in an amount equal to the lesser of (x) the aggregate amount of
Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received in respect of the Mortgage Loans (other than a Specially
Serviced Loan and the Non-Serviced Mortgage Loan) during the related
Collection Period, and (y) the aggregate of (A) that portion of its Servicing
Fees that is being paid in such Collection Period with respect to the
Mortgage Loans (other than a Specially Serviced Loan and the Non-Serviced
Mortgage Loan) and (B) all Prepayment Interest Excess received during the
related Collection Period on the Mortgage Loans (other than a Specially
Serviced Loan and the Non-Serviced Mortgage Loan); provided, however, that
the rights of the Certificateholders to offset of the aggregate Prepayment
Interest Shortfalls shall not be cumulative. Notwithstanding the previous
sentence, if any Mortgage Loan (other than a Specially Serviced Loan and the
Non-Serviced Mortgage Loan) has been subject to a Principal Prepayment and a
Prepayment Interest Shortfall (i) as a result of the payment of insurance
proceeds or condemnation proceeds, (ii) subsequent to a default under the
related Mortgage Loan Documents (provided that the Master Servicer reasonably
believes that acceptance of such prepayment is consistent with the Servicing
Standard) or (iii) pursuant to applicable law or a court order, the portion
of the Servicing Fee described in clause (A) of the preceding sentence shall
be limited to that portion of its Servicing Fees computed at a rate of 0.02%
per annum and paid in such Collection Period with respect to the Mortgage
Loans serviced by it (other than Specially Serviced Loans).
(d) The Master Servicer shall, as to each Mortgage Loan (other
than the Non-Serviced Mortgage Loan) or Serviced Whole Loan that is secured
by the interest of the related Borrower under a ground lease, promptly (and
in any event within 60 days) after the Closing Date notify the related ground
lessor of the transfer of such Mortgage Loan or Serviced Whole Loan to the
Trust pursuant to this Agreement and inform such ground lessor that any
notices of default under the related Ground Lease should thereafter be
forwarded to the Master Servicer.
(e) The Master Servicer shall, to the extent consistent with the
Servicing Standard and permitted by the related Loan Documents, not apply any
funds with respect to a Mortgage Loan (other than the Non-Serviced Mortgage
Loan) or Serviced Whole Loan (whether arising in the form of a holdback,
earnout reserve, cash trap or other similar feature) to the prepayment of the
related Mortgage Loan or Serviced Whole Loan prior to an event of default or
imminent event of default with respect to such Mortgage Loan or Serviced
Whole Loan. Prior to an event of default or imminent event of default any
such amounts described in the immediately preceding sentence shall be held by
the Master Servicer as additional collateral for the related Mortgage Loan or
Serviced Whole Loan.
Section 3.20 Authenticating Agent. The Trustee may appoint an
Authenticating Agent to execute and to authenticate Certificates. The
Authenticating Agent must be acceptable to the Master Servicer and must be a
corporation organized and doing business under the laws of the United States of
America or any state, having a principal office and place of business in a state
and city acceptable to the Master Servicer, having a combined capital and
surplus of at least $15,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by federal or state
authorities. The Trustee shall serve as the initial Authenticating Agent and the
Trustee hereby accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Depositor and
the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Master Servicer. Upon receiving a
notice of resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Master Servicer and the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
Section 3.21 Appointment of Custodians. The Trustee shall be the
initial Custodian hereunder. The Trustee may appoint one or more Custodians to
hold all or a portion of the Mortgage Files on behalf of the Trustee and
otherwise perform the duties set forth in Article II, by entering into a
Custodial Agreement with any Custodian who is not the Trustee or the Depositor.
The Trustee agrees to comply with the terms of each Custodial Agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders. The Trustee shall not be liable for any act or
omission of the Custodian under the Custodial Agreement. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000, shall have a
long-term debt rating of at least "BBB" from S&P and Fitch and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage
File. Each Custodial Agreement may be amended only as provided in Section 11.07.
Any compensation paid to the Custodian shall be an unreimbursable expense of the
Trustee. If the Custodian is an entity other than the Trustee, the Custodian
shall maintain a fidelity bond in the form and amount that are customary for
securitizations similar to the securitization evidenced by this Agreement. The
Custodian shall be deemed to have complied with this provision if one of its
Affiliates has such fidelity bond coverage and, by the terms of such fidelity
bond, the coverage afforded thereunder extends to the Custodian. In addition,
the Custodian shall keep in force during the term of this Agreement a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers and employees in connection with its obligations hereunder in the
form and amount that are customary for securitizations similar to the
securitization evidenced by this Agreement. All fidelity bonds and policies of
errors and omissions insurance obtained under this Section 3.21 shall be issued
by a Qualified Insurer.
Section 3.22 [Reserved].
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts. The Master Servicer shall administer each
Lock-Box Account, Cash Collateral Account, Escrow Account and Reserve Account in
accordance with the related Mortgage or Loan Agreement, Cash Collateral Account
Agreement or Lock-Box Agreement, if any relating to the Mortgage Loans (other
than the Non-Serviced Mortgage Loan).
Section 3.24 Property Advances. (a) The Master Servicer (or, to the
extent provided in Section 3.24(c), the Trustee) to the extent specifically
provided for in this Agreement, shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof with respect to the
Mortgage Loans or Serviced Whole Loans that it is servicing. For purposes of
distributions to Certificateholders and compensation to the Master Servicer, the
Special Servicer or the Trustee, Property Advances shall not be considered to
increase the Stated Principal Balance of any Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so provide.
(b) Notwithstanding anything in this Agreement to the contrary,
the Special Servicer shall give the Master Servicer not less than five
Business Days' written notice with respect to any Property Advance to be made
on any Specially Serviced Loan, before the date on which the Master Servicer
is required to make such Property Advance with respect to such Specially
Serviced Loan or Serviced REO Loan; provided, however, that the Special
Servicer shall be required to provide the Master Servicer with only two
Business Days' written notice in respect of Property Advances required to be
made on an urgent or emergency basis (which may include, without limitation,
Property Advances required to make tax or insurance payments). In addition,
in the event that the Property Advance must be made sooner than the two
Business Days referred to in the previous sentence, the Special Servicer may
make such Property Advances on an emergency basis with respect to any
Specially Serviced Loan or Serviced REO Loan.
(c) The Master Servicer shall notify the Trustee in writing
promptly upon, and in any event within one Business Day after, becoming aware
that it will be unable to make any Property Advance required to be made
pursuant to the terms hereof, and in connection therewith, shall set forth in
such notice the amount of such Property Advance, the Person to whom it is to
be paid, and the circumstances and purpose of such Property Advance, and
shall set forth therein information and instructions for the payment of such
Property Advance, and, on the date specified in such notice for the payment
of such Property Advance, or, if the date for payment has passed or if no
such date is specified, then within five Business Days following such notice,
the Trustee, subject to the provisions of Section 3.24(d), shall pay the
amount of such Property Advance in accordance with such information and
instructions.
(d) The Special Servicer shall promptly furnish any party required
to make Property Advances hereunder with any information in its possession
regarding the Specially Serviced Loans and REO Properties as such party
required to make Property Advances may reasonably request for purposes of
making recoverability determinations. Any request by the Special Servicer
that the Master Servicer make a Property Advance shall be deemed to be a
determination by the Special Servicer that such requested Property Advance is
not a Nonrecoverable Property Advance.
Notwithstanding anything herein to the contrary, no Property Advance
shall be required hereunder if the Person otherwise required to make such
Property Advance determines that such Property Advance would, if made,
constitute a Nonrecoverable Property Advance. In addition, the Master Servicer
shall not make any Property Advance to the extent that it has received written
notice that the Special Servicer has determined that such Property Advance
would, if made, constitute a Nonrecoverable Property Advance. In making such
recoverability determination, such Person will be entitled to (i) give due
regard to the existence of any Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other Mortgage Loans, the recovery of
which, at the time of such consideration, is being deferred or delayed by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in light of
the fact that proceeds on the related Mortgage Loan are a source of recovery not
only for the Property Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is being or may be deferred or delayed and (ii)
consider (among other things) the obligations of the Borrower under the terms of
the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as
it may have been modified, (iii) consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) regarding the possibility and effects of future adverse changes with
respect to such Mortgaged Properties, (iv) estimate and consider (consistent
with the Servicing Standard in the case of the Master Servicer or the Special
Servicer) (among other things) future expenses and (v) estimate and consider
(among other things) the timing of recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior Property
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of
the related Mortgaged Property shall not have been obtained within the prior 12
month period (and the Master Servicer and the Trustee shall each request any
such appraisal from the Special Servicer prior to ordering an Appraisal pursuant
to this sentence) or if such an Appraisal shall have been obtained but as a
result of unforeseen occurrences, such Appraisal does not, in the good faith
determination of the Master Servicer, the Special Servicer or the Trustee,
reflect current market conditions, and the Master Servicer or the Trustee, as
applicable, and the Special Servicer cannot agree on the appropriate downward
adjustment to such Appraisal, the Master Servicer, the Special Servicer or the
Trustee, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund (and, in the case of any Serviced Whole Loan, first of the related
Serviced B Loan, if any, and second, to the extent such expense remains unpaid,
of the related Mortgage Loan, or in the case of a Serviced Whole Loan with a
Serviced Pari Passu Companion Loan, on a pro rata basis as between the related
Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their
respective outstanding principal balance).
Any determination by the Master Servicer, the Special Servicer or
the Trustee that it has made a Nonrecoverable Property Advance or that any
proposed Property Advance, if made, would constitute a Nonrecoverable Property
Advance shall be evidenced in the case of the Master Servicer or the Special
Servicer by a certificate of a Servicing Officer delivered to the other, to the
Trustee and the Depositor and, in the case of the Trustee, by a certificate of a
Responsible Officer of the Trustee, delivered to the Depositor, the Master
Servicer and the Special Servicer, which in each case sets forth such
nonrecoverability determination and the considerations of the Master Servicer,
the Special Servicer or the Trustee, as applicable, forming the basis of such
determination (such certificate accompanied by, to the extent available, income
and expense statements, rent rolls, occupancy status, property inspections and
other information used by the Master Servicer, the Special Servicer or the
Trustee, as applicable, to make such determination, together with any existing
Appraisal or any Updated Appraisal); provided, however, that the Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standard, that any Property Advance previously made or proposed to be
made is nonrecoverable and shall deliver to the Master Servicer and the Trustee
notice of such determination. Any such determination shall be conclusive and
binding on the Master Servicer, the Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a Property Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust (and, in the case of any
Serviced Whole Loan, prior to at the expense of the Trust, first at the expense
of the related Serviced B Loan, if any, and second, to the extent such expense
remains unpaid, of the related Mortgage Loan, or in the case of a Serviced Whole
Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between
the related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance)), any analysis,
Appraisals or market value estimates or other information for such purposes.
Absent bad faith, any such determination as to the recoverability of any
Property Advance shall be conclusive and binding on the Certificateholders and
the Serviced Companion Loan Noteholders.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a Property Advance, if made, would be a
Nonrecoverable Property Advance and (ii) the Master Servicer will be entitled to
rely conclusively on any nonrecoverability determination of the Special
Servicer. The Trustee, in determining whether or not a Property Advance
previously made is, or a proposed Property Advance, if made, would be, a
Nonrecoverable Property Advance shall be subject to the standards applicable to
the Master Servicer hereunder.
With respect to the payment of insurance premiums and delinquent tax
assessments, in the event that the Master Servicer determines that a Property
Advance of such amounts would constitute a Nonrecoverable Advance, the Master
Servicer shall deliver notice of such determination to the Trustee and the
Special Servicer. Upon receipt of such notice, the Special Servicer shall
determine (with the reasonable assistance of the Master Servicer) whether the
payment of such amount (i) is necessary to preserve the related Mortgaged
Property and (ii) would be in the best interests of the Certificateholders and,
in the case of any Serviced Companion Loans, the related Serviced Companion Loan
Noteholders, as a collective whole. If the Special Servicer determines that the
payment of such amount (i) is necessary to preserve the related Mortgaged
Property and (ii) would be in the best interests of the Certificateholders and,
in the case of any Serviced Companion Loans, the related Serviced Companion Loan
Noteholders, the Special Servicer shall direct the Master Servicer in writing to
make such payment and Master Servicer shall make such payment, to the extent of
available funds, from amounts in the Collection Account or, if a Serviced Whole
Loan is involved, from amounts in the applicable Serviced Whole Loan Collection
Account.
Notwithstanding anything to the contrary contained in this Section
3.24, the Master Servicer may elect (but shall not be required) to make a
payment out of the Collection Account to pay for certain expenses specified in
this sentence notwithstanding that the Master Servicer has determined that a
Property Advance with respect to such expenditure would be a Nonrecoverable
Property Advance (unless, with respect to Specially Serviced Loans or Serviced
REO Loans, the Special Servicer has notified the Master Servicer to not make
such expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Master Servicer determines in accordance with the
Servicing Standard (as evidenced by a certificate of a Servicing Officer
delivered to the Trustee) that making such expenditure is in the best interests
of the Certificateholders (and, in the case of a Serviced Whole Loan, the
related Serviced Companion Loan Noteholders), all as a collective whole. The
Master Servicer may elect to obtain reimbursement of Nonrecoverable Property
Advances from the Trust Fund in accordance with Section 3.06.
(e) The Master Servicer, the Special Servicer and/or the Trustee,
as applicable, shall be entitled to the reimbursement of Property Advances
made by any of them to the extent permitted pursuant to Section 3.06, if
applicable, of this Agreement, together with any related Advance Interest
Amount in respect of such Property Advances, and the Master Servicer, the
Special Servicer and the Trustee each hereby covenants and agrees to promptly
seek and effect the reimbursement of such Property Advances from the related
Borrowers to the extent permitted by applicable law and the related Loan
Documents.
The parties acknowledge that, pursuant to the BACM 2006-1 Pooling
and Servicing Agreement, the BACM 2006-1 Servicer is obligated to make servicing
advances with respect to the Desert Passage Mortgage Loan. The Other Servicer
or, to the extent such party has made an advance, the Other Special Servicer,
the Other Trustee or fiscal agent or other Persons making advances under the
Other Pooling and Servicing Agreement, shall be entitled to reimbursement (in
accordance with Section 3.06(b) of this Agreement) for the pro rata portion
(based on Stated Principal Balance) of the related Mortgage Loan (after amounts
allocated to the related B Loan, if any) with respect to any Property Advance
that is nonrecoverable (with, in each case, any pro rata portion of accrued and
unpaid interest thereon provided for under the Other Pooling and Servicing
Agreement) in the manner set forth in the Other Pooling and Servicing Agreement
and the related Co-Lender Agreement, as applicable.
The Master Servicer acknowledges that advancing coordination
(including with respect to Property Advances relating to a Whole Loan) among the
Master Servicer and the other master servicers under each Serviced Companion
Loan Securitization Agreement with respect to a Serviced Pari Passu Companion
Loan shall be conducted in the manner set forth in Section 4.07(f) of this
Agreement and the applicable Co-Lender Agreement.
Section 3.25 Appointment of Special Servicer. (a) CWCapital Asset
Management LLC is hereby appointed as the initial Special Servicer to service
each Specially Serviced Loan.
(b) The Directing Certificateholder shall be entitled to remove
(at its own expense if such removal is without cause) the Special Servicer
with or without cause and to appoint a successor Special Servicer with
respect to all of the Specially Serviced Loans (including each Specially
Serviced Loan that is a Serviced Whole Loan); provided, that in the event
that the Directing Certificateholder is not the Controlling Class
Representative, such Directing Certificateholder may only terminate and
appoint a replacement Special Servicer with respect to the applicable
Serviced Whole Loan. If there is a Special Servicer Event of Default, the
Special Servicer shall be removed and replaced pursuant to Sections 7.01(c)
and 7.02. The Trustee shall, promptly after receiving any such removal
notice, so notify each Rating Agency. If the replacement designated in such
notice is consented to by the Trustee (such consent not to be unreasonably
withheld), the termination of the Special Servicer and appointment of a
successor Special Servicer pursuant to this Section 3.25(b) shall not be
effective until (i) each Rating Agency confirms to the Trustee in writing
that such appointment, in and of itself, would not cause a downgrade,
qualification or withdrawal of the then-current ratings assigned to any Class
of Certificates, (ii) the successor special servicer has assumed all of its
responsibilities, duties and liabilities hereunder pursuant to a writing
reasonably satisfactory to the Trustee and (iii) receipt by the Trustee of an
Opinion of Counsel to the effect that (x) the designation of such replacement
to serve as Special Servicer is in compliance with this Agreement, (y) such
replacement will be bound by the terms of this Agreement and (z) this
Agreement will be enforceable against such replacement in accordance with its
terms. Any successor Special Servicer shall make the representations and
warranties provided for in Section 2.04(b) mutatis mutandis. In addition, any
replacement Special Servicer that will service any Serviced Whole Loan shall
meet any requirements specified in the related Co-Lender Agreement.
The existing Special Servicer shall be deemed to have been removed
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that the Special Servicer removed pursuant to this
Section shall be entitled to receive, and shall have received, all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation and it shall continue to be entitled to any rights that accrued
prior to the date of such resignation (including the right to receive all fees,
expenses and other amounts accrued or owing to it under this Agreement, plus
interest at the Advance Rate with respect to any unpaid Property Advances made
by such Special Servicer with respect to periods prior to the date of such
removal and the right to receive any Workout Fee specified in Section 3.12(c) in
the event that the Special Servicer is terminated and any indemnification rights
that the Special Servicer is entitled to pursuant to Section 6.03(a))
notwithstanding any such removal. Such removed Special Servicer shall cooperate
with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including without limitation the transfer within two Business Days to
the successor Special Servicer for administration by it of all cash amounts that
are thereafter received with respect to the Mortgage Loans.
(c) The appointment of any such successor Special Servicer shall
not relieve the Master Servicer or the Trustee of their respective
obligations to make Advances as set forth herein; provided, however, the
Master Servicer shall not be liable for any actions or any inaction of such
successor Special Servicer. Any termination fee payable to the terminated
Special Servicer (and it is acknowledged that there is no such fee payable in
the event of a termination for breach of this Agreement) shall be paid by the
Certificateholders or the Directing Certificateholder, as applicable, so
terminating the Special Servicer and shall not in any event be an expense of
the Trust Fund or any Serviced Companion Loan Noteholder (unless such
Serviced Companion Loan Noteholder is the Directing Certificateholder).
Section 3.26 Transfer of Servicing Between the Master Servicer and
the Special Servicer; Record Keeping; Asset Status Report. (a) Upon the
occurrence of any event specified in the definition of Specially Serviced Loan
with respect to any Mortgage Loan (other than the Non-Serviced Mortgage Loan) or
Serviced Whole Loan of which the Master Servicer may notice, the Master Servicer
shall immediately give notice thereof to the Special Servicer, the Trustee, the
related Mortgage Loan Seller, the Controlling Class Certificateholders and, if
applicable, the related Serviced Companion Loan Noteholders and shall use its
best efforts to provide the Special Servicer with all information, documents
(but excluding the original documents constituting the Mortgage File) and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to such Mortgage Loan or Serviced Whole Loan, as
applicable, and reasonably requested by the Special Servicer to enable it to
assume its duties hereunder with respect thereto without acting through a
sub-servicer. The Master Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan or
Serviced Whole Loan becomes a Specially Serviced Loan and in any event shall
continue to act as Master Servicer and administrator of such Mortgage Loan or
Serviced Whole Loan until the Special Servicer has commenced the servicing of
such Mortgage Loan or Serviced Whole Loan, which shall occur upon the receipt by
the Special Servicer of the information, documents and records referred to in
the preceding sentence. With respect to each Mortgage Loan or Serviced Whole
Loan that becomes a Specially Serviced Loan, the Master Servicer shall instruct
the related Borrower to continue to remit all payments in respect of such
Mortgage Loan or Serviced Whole Loan to the Master Servicer. Notwithstanding the
preceding sentence, with respect to each Mortgage Loan or Serviced Whole Loan
that becomes a Specially Serviced Loan, the Special Servicer may instruct the
related Borrower to remit all payments in respect of such Mortgage Loan or
Serviced Whole Loan to the Special Servicer, provided that the payee in respect
of such payments shall remain the Master Servicer. The Special Servicer shall
remit to the Master Servicer any such payments received by it pursuant to the
preceding sentence within one Business Day of receipt. The Master Servicer shall
forward any notices it would otherwise send to the Borrower of a Specially
Serviced Loan to the Special Servicer who shall send such notice to the related
Borrower.
Upon determining that a Specially Serviced Loan has become a
Corrected Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Master Servicer, and upon giving such notice, such Mortgage Loan
or Serviced Whole Loan shall cease to be a Specially Serviced Loan in accordance
with the first proviso of the definition of Specially Serviced Loan, the Special
Servicer's obligation to service such Mortgage Loan or Serviced Whole Loan shall
terminate and the obligations of the Master Servicer to service and administer
such Mortgage Loan or Serviced Whole Loan as a Mortgage Loan or Serviced Whole
Loan that is not a Specially Serviced Loan shall resume. In addition, if the
related Borrower has been instructed, pursuant to the preceding paragraph, to
make payments to the Special Servicer, upon such determination, the Special
Servicer shall instruct the related Borrower to remit all payments in respect of
such Specially Serviced Loan directly to the Master Servicer.
(b) In servicing any Specially Serviced Loan, the Special Servicer
shall provide to the Custodian originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to
the extent such documents are in the possession of the Special Servicer) and
copies of any additional related Mortgage Loan information, including
correspondence with the related Borrower, and the Special Servicer shall
promptly provide copies of all of the foregoing to the Master Servicer as
well as copies of any analysis or internal review prepared by or for the
benefit of the Special Servicer.
(c) Not later than two Business Days preceding each date on which
the Master Servicer is required to furnish a report under Section 3.13(a) to
the Trustee, the Special Servicer shall deliver to the Trustee, with a copy
to the Master Servicer, a written statement describing, on a loan by loan
basis, (i) the amount of all payments on account of interest received on each
Specially Serviced Loan, the amount of all payments on account of principal,
including Principal Prepayments, on each Specially Serviced Loan, the amount
of Net Insurance Proceeds and Net Liquidation Proceeds received with respect
to each Specially Serviced Loan, and the amount of net income or net loss, as
determined from management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
rental income that does not constitute Rents from Real Property with respect
to the Serviced REO Property relating to each applicable Specially Serviced
Loan, in each case in accordance with Section 3.17 (it being understood and
agreed that to the extent this information is provided in accordance with
Section 3.13(f), this Section 3.26(c) shall be deemed to be satisfied) and
(ii) such additional information relating to the Specially Serviced Loans as
the Master Servicer or the Trustee reasonably request, to enable it to
perform its duties under this Agreement. Such statement and information shall
be furnished to the Master Servicer in writing and/or in such electronic
media as is acceptable to the Master Servicer.
(d) Notwithstanding the provisions of the preceding Section
3.26(c), the Master Servicer shall maintain ongoing payment records with
respect to each of the Specially Serviced Loans and shall provide the Special
Servicer with any information reasonably required by the Special Servicer to
perform its duties under this Agreement. The Special Servicer shall provide
the Master Servicer with any information reasonably required by the Master
Servicer to perform its duties under this Agreement.
(e) [Reserved.]
(f) No later than 30 days after a Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or a Serviced Whole Loan becomes a Specially
Serviced Loan, the Special Servicer shall deliver to each Rating Agency, the
Master Servicer, the Controlling Class Representative, each related Serviced
Companion Loan Noteholder, and upon request, the Underwriters, a report (the
"Asset Status Report") with respect to such Mortgage Loan or Serviced Whole
Loan and the related Mortgaged Property; provided, however, the Special
Servicer shall not be required to deliver an Asset Status Report to the
Controlling Class Representative if the Special Servicer and the Controlling
Class Representative are the same entity. Such Asset Status Report shall set
forth the following information to the extent reasonably determinable:
(i) date of transfer of servicing of such Mortgage Loan or Serviced
Whole Loan to the Special Servicer;
(ii) summary of the status of such Specially Serviced Loan and any
negotiations with the related Borrower;
(iii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid and
to the enforcement of any related guaranties or other collateral for the
related Mortgage Loan or Serviced Whole Loan and whether outside legal
counsel has been retained;
(iv) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(v) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status (including the
modification of a monetary term, and any work-out, restructure or debt
forgiveness) and returned to the Master Servicer for regular servicing or
foreclosed or otherwise realized upon (including any proposed sale of a
Defaulted Mortgage Loan or Serviced REO Property);
(vi) a copy of the last obtained Appraisal of the Mortgaged
Property; and
(vii) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status Report, the
Controlling Class Representative does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that such Special Servicer may
not take any action that is contrary to applicable law, this Agreement, the
Servicing Standard (taking into consideration the best interests of all the
Certificateholders and, with respect to any Serviced Whole Loan, the related
Serviced Companion Loan Noteholders, as a collective whole) or the terms of the
applicable Loan Documents. If the Controlling Class Representative disapproves
such Asset Status Report within such 10 Business Day period, the Special
Servicer will revise such Asset Status Report and deliver to the Controlling
Class Representative, each related Serviced Companion Loan Noteholder, the
Rating Agencies and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 Business Days after such disapproval.
The Special Servicer shall revise such Asset Status Report as described above in
this Section 3.26(f) until the Controlling Class Representative fails to
disapprove such revised Asset Status Report in writing within 10 Business Days
of receiving such revised Asset Status Report or until the Special Servicer
makes a determination consistent with the Servicing Standard, that such
objection is not in the best interests of all the Certificateholders and the
related Serviced Companion Loan Noteholders, if applicable, as a collective
whole. In any event, if the Controlling Class Representative does not approve an
Asset Status Report within 60 Business Days from the first submission of an
Asset Status Report, the Special Servicer may act upon the most recently
submitted form of Asset Status Report where required to comply with the
Servicing Standard. The Special Servicer may, from time to time, modify any
Asset Status Report it has previously delivered and implement such report,
provided such report shall have been prepared, reviewed and not rejected
pursuant to the terms of this Section, and in particular, shall modify and
resubmit such Asset Status Report to the Controlling Class Representative (with
a copy to the Trustee) if (i) the estimated sales proceeds, foreclosure
proceeds, work-out or restructure terms or anticipated debt forgiveness varies
materially from the amount on which the original report was based or (ii) the
related Borrower becomes the subject of bankruptcy proceedings. Notwithstanding
the foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a 10
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders and, if any Serviced Whole Loan is involved, the
related Serviced Companion Loan Noteholders, as a collective whole, and it has
made a reasonable effort to contact the Controlling Class Representative and, if
any Serviced Whole Loan is involved, the related Serviced Companion Loan
Noteholders and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interests of all the Certificateholders and, if
any Serviced Whole Loan is involved, the related Serviced Companion Loan
Noteholders (as a collective whole) pursuant to the Servicing Standard, and,
upon making such determination, shall implement the recommended action outlined
in the Asset Status Report. The Asset Status Report is not intended to replace
or satisfy any specific consent or approval right which the Controlling Class
Representative may have. Notwithstanding the foregoing, with respect to any
Serviced Whole Loan, the Directing Certificateholder (excluding, in the case of
the Buckeye Portfolio Whole Loan, the holder of the related Buckeye Portfolio B
Loan) shall be entitled to a comparable Asset Status Report and the related
approval rights, but the procedure and timing for approval by the Directing
Certificateholder of the related Asset Status Report shall be governed by the
terms set forth in this Agreement, as applicable to the related Serviced Whole
Loan.
The Special Servicer shall have the authority to meet with the
Borrower for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard, this Agreement, applicable law or the related Loan
Documents.
No direction of the Directing Certificateholder shall (a) require,
permit or cause the Special Servicer to violate the terms of a Specially
Serviced Loan, applicable law or any provision of this Agreement, including, but
not limited to, Section 3.09, Section 3.18, Section 3.20 and Section 3.29 and
the Special Servicer's obligation to act in accordance with the Servicing
Standard and to maintain the REMIC status of the Lower-Tier REMIC and the
Upper-Tier REMIC, or (b) result in the imposition of a "prohibited transaction"
or "contribution" tax under the REMIC Provisions, or (c) expose the Master
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Sellers, the
Trust Fund, the Trustee or their respective officers, directors, employees or
agents to any claim, suit or liability or (d) materially expand the scope of the
Special Servicer's, Trustee's or the Master Servicer's responsibilities under
this Agreement. The Special Servicer shall not be required to follow any
direction of the Directing Certificateholder described in this paragraph.
(g) The Master Servicer may, with the consent of the Directing
Certificateholder, effect two extensions of up to 6 months each of a Mortgage
Loan (other than the Non-Serviced Mortgage Loan) or Serviced Whole Loan that
it is servicing with an original term-to-maturity of 5 years or less;
provided, however, that the related Borrower is in default with respect to
such Mortgage Loan or Serviced Whole Loan or, in the judgment of the Master
Servicer, such default is reasonably foreseeable. In addition, the Special
Servicer may, subject to the Servicing Standard and with the consent of the
Directing Certificateholder, extend the maturity of any Mortgage Loan (other
than the Non-Serviced Mortgage Loan) or Serviced Whole Loan that is not, at
the time of such extension, a Specially Serviced Loan, in each case for up to
two years, subject to a limit of a total of four calendar years of
extensions; provided that a default on a Balloon Payment with respect to the
subject Mortgage Loan or Serviced Whole Loan shall have occurred.
Section 3.27 [Reserved].
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Certain Mortgage Loans. (a) Prior
to taking any action with respect to a Mortgage Loan or a Serviced Whole Loan
secured by Mortgaged Properties located in a "one-action" state, the Master
Servicer or Special Servicer, as applicable, shall consult with legal counsel,
the fees and expenses of which shall be an expense of the Trust Fund (and, in
the case of any Serviced Whole Loan, first of the related Serviced B Loan, if
any, and second, to the extent such expense remains unpaid, from the applicable
Serviced Whole Loan Collection Account from amounts allocable to the related
Mortgage Loan, or in the case of a Serviced Whole Loan with a Serviced Pari
Passu Companion Loan, on a pro rata basis as between the related Mortgage Loan
and any related Serviced Pari Passu Companion Loan (based on their respective
outstanding principal balance).
(b) The Master Servicer shall send written notice to each Borrower
and the related Manager and clearing bank relating to a Mortgage Loan that it
is servicing that, if applicable, it and/or the Trustee has been appointed as
the "Designee" of the "Lender" under any related Lock-Box Agreement.
(c) [Reserved.]
(d) The Master Servicer (together with its employees, officer and
directors) shall not utilize the proprietary and nonpublic information that
it becomes aware of in servicing the Mortgage Loans to render advice in
connection with, solicit, or otherwise participate in the refinancing of any
Mortgage Loans or Serviced Whole Loans (whether at maturity or otherwise,
unless the related Mortgage Loan Seller confirms in writing that it will not
pursue the refinancing of such Mortgaged Property). Neither the Master
Servicer nor the Special Servicer shall make its mortgage loan servicing
system available to the Master Servicer's or the Special Servicer's
affiliates engaged in the commercial mortgage origination business for the
purpose of soliciting additional lending business.
(e) Without limiting the obligations of the Master Servicer
hereunder with respect to the enforcement of a Borrower's obligations under
the related Loan Documents, the Master Servicer agrees that it shall, in
accordance with the Servicing Standard, enforce the provisions of the Loan
Documents with respect to the collection of Prepayment Premiums and Yield
Maintenance Charges.
(f) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation hereunder that a proposed action will
not result in the downgrade, withdrawal, or qualification of any rating
assigned to any Class of Certificates, the Master Servicer shall require the
related Borrower to pay such fee to the full extent permitted under the
applicable Loan Documents. In the event that such fee remains unpaid, such
fee shall be an expense of the Trust Fund (allocated as an Additional Trust
Fund Expense in the same manner as Realized Losses as set forth in Section
4.01(f) and, in the case of any Serviced Whole Loan, the Trust Fund, or in
the case of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan,
on a pro rata basis as between the related Mortgage Loan and any related
Serviced Pari Passu Companion Loan (based on their respective outstanding
principal balance), the costs of which may be advanced as a Property Advance.
(g) The Master Servicer shall, in accordance with the Servicing
Standard, enforce the right of the Trust to recover any amounts owed by the
Serviced Companion Loan Noteholders to the Trust Fund pursuant to the related
Co-Lender Agreement (but in the case of any Serviced B Loan, subject to
Section 1.03). The cost of such enforcement on behalf of the Trust shall be
paid and reimbursable as a Property Advance.
(h) With respect to a Mortgage Loan or Serviced Whole Loan with a
Stated Principal Balance equal to or greater than $20,000,000 to the extent
not inconsistent with the related Mortgage Loan or Serviced Whole Loan, the
Master Servicer shall not consent to a change of franchise affiliation with
respect to a Mortgaged Property or the property manager with respect to a
Mortgaged Property unless the Master Servicer obtains written confirmation
from Fitch and S&P that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then-current ratings assigned
to the Certificates.
Section 3.29 Certain Rights and Obligations of the Special Servicer.
(a) In addition to its rights and obligations with respect to Specially Serviced
Loans, the Special Servicer has the right to approve any modification, whether
or not the applicable Mortgage Loan is a Specially Serviced Loan, to the extent
described under Section 3.30 and to approve any waivers of due-on-sale or
due-on-encumbrance clauses as described above under Section 3.09, whether or not
the applicable Mortgage Loan is a Specially Serviced Loan. With respect to non
Specially Serviced Loans, the Master Servicer shall notify the Special Servicer
of any request for approval (a "Request for Approval") received relating to the
Special Servicer's above-referenced approval rights and forward to the Special
Servicer its written recommendation, analysis and any other information or
documents reasonably requested by the Special Servicer (to the extent such
information or documents are in the Master Servicer's possession). The Special
Servicer shall have 10 Business Days (from the date that the Special Servicer
receives the information it requested from the Master Servicer) to analyze and
make a recommendation with respect to a Request for Approval with respect to a
non Specially Serviced Loan and, immediately following such 10 Business Day
period, is required to notify the Controlling Class Representative of such
Request for Approval and its recommendation with respect thereto. Following such
notice, the Controlling Class Representative shall have five Business Days from
the date it receives the Special Servicer recommendation and any other
information it may reasonably request (or, with respect to any Serviced Whole
Loan, such longer time period as may be provided in the related Co-Lender
Agreement) to approve any recommendation of the Special Servicer relating to any
Request for Approval. In any event, if the Controlling Class Representative does
not respond to a Request for Approval within the required 5 Business Days, the
Special Servicer may deem its recommendation approved by the Controlling Class
Representative and if the Special Servicer does not respond to a Request for
Approval within the required 15 Business Days, the Master Servicer may deem its
recommendation approved by the Special Servicer. With respect to a Specially
Serviced Loan, the Special Servicer must notify the Controlling Class
Representative of any Request for Approval received relating to the Controlling
Class Representative's above-referenced approval rights and its recommendation
with respect thereto. The Controlling Class Representative shall have 10
Business Days (after receipt of all information reasonably requested) to approve
any recommendation of the Special Servicer relating to any such Request for
Approval. In any event, if the Controlling Class Representative does not respond
to any such Request for Approval within the required 10 Business Days, the
Special Servicer may deem its recommendation approved by the Controlling Class
Representative. Notwithstanding the foregoing, (i) with respect to any Serviced
Whole Loan, the Directing Certificateholder shall be entitled to a comparable
Request for Approval, but the procedure and timing for approval by the Directing
Certificateholder of the related Request for Approval shall be governed by the
terms set forth in the related Intercreditor Agreement and (ii) if the Special
Servicer determines that immediate action is necessary to protect the interests
of the Certificateholders (as a collective whole) it need not wait for a
response from the Controlling Class Representative.
(b) Neither the Master Servicer nor the Special Servicer shall be
required to take or refrain from taking any action pursuant to instructions
from the Directing Certificateholder that would cause any one of them to
violate applicable law, this Agreement, including the Servicing Standard, or
the REMIC Provisions.
(c) The Master Servicer and the Special Servicer, as applicable,
shall discuss with the Controlling Class Representative, on a monthly basis,
the performance of any Mortgage Loan (other than the Non-Serviced Mortgage
Loan) or Serviced Whole Loan that is a Specially Serviced Loan, which is
delinquent, has been placed on a "Watch List" or has been identified by the
Master Servicer or the Special Servicer as exhibiting deteriorating
performance.
Section 3.30 Modification, Waiver, Amendment and Consents. (a)
Subject to Sections 3.29, 3.30(n) and 3.32, the Master Servicer or the Special
Servicer, as applicable, may agree to any modification, waiver or amendment of
any term of, forgive or defer interest on and principal of, capitalize interest
on, permit the release, addition or substitution of collateral securing any
Mortgage Loan (other than the Non-Serviced Mortgage Loan) or Serviced Companion
Loan and/or permit the release of the Borrower on or any guarantor of any
Mortgage Loan and/or permit any change in the management company or franchise
with respect to any Mortgaged Property without the consent of the Trustee, any
Certificateholder (other than the Directing Certificateholder), subject,
however, to each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 3.03 and 3.09 and except with
respect to any Penalty Charges that the Master Servicer or Special
Servicer, as applicable, may be entitled to as additional compensation
under this Agreement, neither the Master Servicer nor the Special Servicer
shall agree to any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.30(a) (and, with
respect to the Serviced Whole Loans, Section 3.32) with respect to, any
Mortgage Loan or Serviced Whole Loan, as applicable, that would affect the
amount or timing of any related payment of principal, interest or other
amount payable thereunder or, in the Master Servicer's or the Special
Servicer's, as applicable, good faith and reasonable judgment, in
accordance with the Servicing Standard, materially impair the security for
such Mortgage Loan or Serviced Whole Loan, as applicable, or reduce the
likelihood of timely payment of amounts due thereon or materially alter,
substitute or increase the security for such Mortgage Loan or Serviced
Whole Loan, as applicable (other than the alteration or construction of
improvements thereon), or any guaranty or other credit enhancement with
respect thereto (other than the substitution of a similar commercially
available credit enhancement contract); provided, however, that the
Special Servicer may agree to any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section 3.30(a)
(and, with respect to the Serviced Whole Loans, Section 3.32) with respect
to a Specially Serviced Loan that would have any such effect, but only if,
in the Special Servicer's reasonable and good faith judgment, in
accordance with the Servicing Standard, a material default on such
Specially Serviced Loan has occurred or a default in respect of payment on
such Specially Serviced Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders (and, in the case of any
Serviced Whole Loan, the related Serviced Companion Loan Noteholders), on
a present value basis, than would liquidation. Any such action taken by
the Special Servicer shall be accompanied by an Officers' Certificate to
such effect and to which is attached the present value calculation which
establishes the basis for such determination, a copy of which shall be
delivered to the Trustee and to the Rating Agencies;
(ii) the Special Servicer may not extend the Maturity Date of any
Specially Serviced Loan beyond the date that is the date occurring later
than the earlier of (A) two years prior to the Rated Final Distribution
Date and (B) in the case of a Specially Serviced Loan secured by the
related Borrower's interest in a ground lease, the date that is 20 years
prior to the expiration date of such ground lease (or 10 years prior to
the expiration date of such lease with the consent of the Directing
Certificateholder if the Special Servicer gives due consideration to the
remaining term of such ground lease);
(iii) neither the Master Servicer nor the Special Servicer may agree
to or permit any material modification, waiver or amendment of any term of
any Mortgage Loan or Serviced Loan Combination that is not in default or
with respect to which default is not reasonably foreseeable unless it
provides the Trustee with an opinion of counsel (at the expense of the
related Borrower or such other person requesting such modification or, if
such expense cannot be collected from the related Borrower or such other
person, to be paid by the Master Servicer as a Servicing Advance) to the
effect that the contemplated waiver, modification or amendment (A) would
not be a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b) and (B) will not cause
(x) any of the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify
as a REMIC for purposes of the Code or (y) any of the Lower-Tier REMIC or
the Upper-Tier REMIC to be subject to any tax under the REMIC Provisions;
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Borrower to add or substitute any collateral for an outstanding
Mortgage Loan or Serviced Whole Loan, which collateral constitutes real
property, unless (A) the Master Servicer or the Special Servicer, as
applicable, shall have first determined, in its reasonable and good faith
judgment, in accordance with the Servicing Standard, based upon a Phase I
environmental assessment (and such additional environmental testing as the
Master Servicer or the Special Servicer, as applicable, deems necessary
and appropriate) prepared by an Independent Person who regularly conducts
environmental assessments (and such additional environmental testing), at
the expense of the related Borrower, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present with
respect to such new collateral relating to the use, management or disposal
of any Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any
then-applicable environmental laws and/or regulations, and (B) such
addition and/or substitution would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing by each
Rating Agency at the expense of the related Borrower); and
(v) neither the Master Servicer nor the Special Servicer shall
release or substitute any collateral securing an outstanding Performing
Mortgage Loan except as provided in Section 3.10(i) and except in the case
of a release where (A) the use of the collateral to be released will not,
in the Master Servicer's or the Special Servicer's, as applicable, good
faith and reasonable judgment, materially and adversely affect the net
operating income being generated by or the use of the related Mortgaged
Property, (B) except in the case of the release of non-material parcels,
there is a corresponding principal paydown of such Mortgage Loan or
Serviced Whole Loan in an amount at least equal to, or a delivery of
substitute collateral with an appraised value at least equal to, the
appraised value of the collateral to be released, (C) the remaining
Mortgaged Property and any substitute collateral is, in the Master
Servicer's or the Special Servicer's, as applicable, good faith and
reasonable judgment, adequate security for the remaining Mortgage Loan or
Serviced Whole Loan and (D) such release and/or substitution would not
result in the downgrade, qualification or withdrawal of the rating then
assigned by any Rating Agency to any Class of Certificates and, in the
case of any Serviced Whole Loan, any related Serviced Companion Loan
Securities (as confirmed in writing by each Rating Agency and any other
rating agency that is then rating any related Serviced Companion Loan
Securities);
provided that notwithstanding clauses (i) through (v) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if in its
reasonable and good faith judgment such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar. Neither the Master
Servicer nor the Special Servicer shall extend the Maturity Date on any Mortgage
Loan except pursuant to Section 3.26(g) or this Section 3.30(a) and with respect
to a Serviced Whole Loan, Section 3.32, or as otherwise required under the
related Loan Documents.
(b) Neither the Master Servicer nor the Special Servicer shall
have any liability to the Trust Fund, the Certificateholders or, if
applicable, Serviced Companion Loan Noteholders or any other Person if its
analysis and determination that the modification, waiver, amendment or other
action contemplated by Section 3.30(a) is reasonably likely to produce a
greater recovery to Certificateholders and, if applicable, Serviced Companion
Loan Noteholders, as a collective whole, on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis
and determination were made on a reasonable basis in good faith and in
accordance with the Servicing Standard by the Master Servicer or the Special
Servicer, as applicable, and the Master Servicer or the Special Servicer, as
applicable, was not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders or, if applicable, Serviced Companion
Loan Noteholders, be added to the unpaid principal balance of the related
Mortgage Loan or Serviced Whole Loan, notwithstanding that the terms of such
Mortgage Loan or Serviced Whole Loan or such modification, waiver or
amendment so permit.
(d) Except for waivers of penalty charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans (other
than the Non-Serviced Mortgage Loan) or any Serviced Whole Loan entered into
pursuant to this Section 3.30 (and, with respect to the Serviced Whole Loans,
Section 3.32) shall be in writing.
(e) The Master Servicer or the Special Servicer, as applicable,
shall notify the Trustee in writing, of any modification, waiver, material
consent or amendment of any term of any Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan and the date thereof, and
shall deliver to the Custodian for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver,
material consent or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof.
(f) The Master Servicer or the Special Servicer may (subject to
the Servicing Standard), as a condition to granting any request by a Borrower
for consent, modification, waiver or indulgence or any other matter or thing,
the granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan (other than the
Non-Serviced Mortgage Loan) or Serviced Whole Loan and is permitted by the
terms of this Agreement and applicable law, require that such Borrower pay to
it (i) as additional servicing compensation, a reasonable and customary fee
for the additional services performed in connection with such request
(provided that the charging of such fee would not constitute a "significant
modification" of the related Mortgage Loan or Serviced Whole Loan, within the
meaning of Treasury Regulations Section 1.860G-2(b)), and (ii) any related
costs and expenses incurred by it. In no event shall the Master Servicer or
the Special Servicer be entitled to payment for such fees or expenses unless
such payment is collected from the related Borrower.
(g) The Directing Certificateholder shall have the rights set
forth in Sections 3.26 and 3.29 hereof with respect to any modification,
waiver, amendment or other action contemplated by Section 3.30(a) (and with
respect to a Serviced Whole Loan, the rights set forth in Section 3.32). The
Controlling Class Representative shall have no duty to act in the interests
of any Class other than the Controlling Class.
(h) Notwithstanding the foregoing, the Master Servicer shall not
permit the substitution of any Mortgaged Property pursuant to the defeasance
provisions of any Mortgage Loan (other than the Non-Serviced Mortgage Loan)
(or any portion thereof) or Serviced Whole Loan, if any, unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and
satisfies the conditions set forth in Section 3.09(f).
(i) Notwithstanding anything herein or in the related Loan
Documents to the contrary, the Master Servicer may permit the substitution of
direct, non-callable "government securities" within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, or any other securities that
comply with Treasury Regulations Section 1.860G-2(a)(8) for any Mortgaged
Property pursuant to the defeasance provisions of any Mortgage Loan (other
than the Non-Serviced Mortgage Loan) (or any portion thereof) or Serviced
Whole Loan in lieu of the defeasance collateral specified in the related Loan
Documents or, if applicable, the Serviced Whole Loan; provided that, the
Master Servicer reasonably determines that allowing their use would not cause
a default or event of default under the related Loan Documents to become
reasonably foreseeable and the Master Servicer receives an Opinion of Counsel
(at the expense of the Borrower to the extent permitted under the Loan
Documents) to the effect that such use would not be and would not constitute
a "significant modification" of such Mortgage Loan or Serviced Whole Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a
REMIC or result in the imposition of a tax upon the Lower-Tier REMIC, the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code,
but not including the tax on "net income from foreclosure property") and
provided, further, that the requirements set forth in Section 3.09(f) are
satisfied.
(j) If required under the related Loan Documents or if otherwise
consistent with the Servicing Standard, the Master Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), into which all
payments received by the Master Servicer from any defeasance collateral
substituted for any Mortgaged Property shall be deposited and retained, and
shall administer such Defeasance Accounts in accordance with the Loan
Documents. Each Defeasance Account shall at all times be an Eligible Account.
Notwithstanding the foregoing, in no event shall the Master Servicer permit
such amounts (other than a nominal amount) to be maintained in the Defeasance
Account for a period in excess of 120 days, unless such amounts are
reinvested by the Master Servicer in "government securities" within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940, or any
other securities that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by
it from defeasance collateral substituted for any Mortgaged Property into the
Collection Account or, if the Serviced Whole Loan is involved, the Serviced
Whole Loan Collection Account and treat any such payments as payments made on
the Mortgage Loan or Serviced Whole Loan, as applicable, in advance of its
Due Date in accordance with clause (a) of the definition of Principal
Distribution Amount, and not as a prepayment of the related Mortgage Loan or
Serviced Companion Loan. Notwithstanding anything herein to the contrary, in
no event shall the Master Servicer permit such amounts to be maintained in
the Collection Account or, if the Serviced Whole Loan is involved, the
Serviced Whole Loan Collection Account for a period in excess of 365 days.
(k) In the event the Master Servicer or Special Servicer
determines that a refusal to consent by the Directing Certificateholder or
any advice from the Directing Certificateholder would cause the Master
Servicer or Special Servicer, as applicable, to violate applicable law, the
terms of the applicable Loan Documents, the REMIC Provisions or the terms of
this Agreement, including without limitation, the Servicing Standard, the
Master Servicer or Special Servicer shall disregard such refusal to consent
or advice and notify the Directing Certificateholder, the Trustee and the
Rating Agencies of its determination, including a reasonably detailed
explanation of the basis therefor.
(l) Any modification, waiver or amendment of or consents or
approvals relating to a Mortgage Loan or Serviced Whole Loan that is a
Specially Serviced Loan or Serviced REO Loan shall be performed by the
Special Servicer and not the Master Servicer, and to the extent provided in
this Agreement and/or the applicable Co-Lender Agreement, shall be subject to
the consent of the Directing Certificateholder or the Controlling Class
Representative, as applicable.
(m) With respect to a defeasance of Mortgage Loan originated or
acquired by GACC, to the extent the related Loan Documents provide that the
originator of such Mortgage Loan has the right to establish or designate the
successor borrower and to purchase or cause to be purchased the related
defeasance collateral ("GACC Defeasance Rights and Obligations"), the Master
Servicer shall provide, upon receipt of notice of request to cause a
defeasance of such Mortgage Loan, written notice of such defeasance to GACC
or its assignee. Until such time as GACC provides written notice to the
contrary, notice of a defeasance of a Mortgage Loan with GACC Defeasance
Rights and Obligations shall be delivered to CDHC, LLC, x/x Xxxxxxxxxx
Xxxxxxx Xxxxxxx, XXX, 00000 Xxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Legal Department, Tel: (000) 000-0000; Fax: (704)
000-0000.
(n) For any Mortgage Loan and Serviced Whole Loan (other than a
Specially Serviced Loan and the Non-Serviced Mortgage Loan), subject to the
rights of the Special Servicer set forth in this Section 3.30, and further
subject to the rights of the Directing Certificateholder set forth herein,
including in Section 3.32 and, with respect to any Serviced Whole Loan,
further subject to the rights of the related Serviced B Loan Noteholder(s)
under the related Co-Lender Agreement, the Master Servicer, without the
consent of the Special Servicer or the Directing Certificateholder, as
applicable, shall be responsible for any request by a Mortgagor for the
consent or approval of the mortgagee with respect to:
(i) approving routine leasing activity with respect to any lease for
less than the lesser of (A) 15,000 square feet and (B) 20% of the related
Mortgaged Property; provided that (1) no subordination, non-disturbance
and attornment agreement (an "SNDA") exists with respect to such lease and
(2) no such lease is a Ground Lease; and provided further that, except in
the case of the PNC Mortgage Loans (but only up to the limits specified in
clauses (A) and (B) above), the Master Servicer shall not grant or approve
(but shall forward to the Special Servicer for its approval) any request
for (or any waiver, consent, approval, amendment or modification in
connection with) an SNDA or approval of a lease that contains an SNDA;
(ii) approving any waiver affecting the timing of receipt of
financial statements from any Borrower; provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged Property;
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Borrower (other than the payment
of a management fee to any property manager if such management fee is no
more than the management fee in effect on the Cut-off Date);
(iv) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(v) approving modifications, consents or waivers (except as provided
for in Sections 3.30(a)(i)-(v)) in connection with a defeasance permitted
by the terms of the related Mortgage Loan or Serviced Whole Loan if the
Master Servicer receives an Opinion of Counsel (which Opinion of Counsel
shall be an expense of the Borrower) to the effect that such modification,
waiver or consent would not cause any Trust REMIC to fail to qualify as a
REMIC under the Code or result in a "prohibited transaction" under the
REMIC Provisions;
(vi) approving consents with respect to non-material rights-of-way
and non-material easements and consent to subordination of the related
Mortgage Loan or Serviced Whole Loan to such non-material rights-of-way or
easements; and
(vii) any non-material modifications, waivers or amendments not
provided for in clauses (i) through (vi) above, which are necessary to
cure any ambiguities or to correct scrivener's errors in the terms of the
related Mortgage Loan.
provided, however, in the case of any Serviced Whole Loan, the Master Servicer
shall provide written notice of such action to the related Serviced B Loan
Noteholder(s); and provided, further, that the Master Servicer shall promptly
notify the Special Servicer of any requests not subject to this Section 3.30(n)
for which the Special Servicer is responsible pursuant to this Section 3.30 and
shall deliver to the Special Servicer (which delivery may be by electronic
transmission in a format acceptable to the Master Servicer and Special Servicer)
a copy of the request, and all information in the possession of the Master
Servicer that the Special Servicer may reasonably request related thereto. For
the avoidance of doubt, and without limiting the generality of the foregoing,
any request for the disbursement of earnouts or holdback amounts with respect to
any Mortgage Loan listed on Exhibit X received by the Master Servicer shall be
submitted to the Special Servicer for approval (which approval shall be deemed
given if the request is not denied by the Special Servicer in writing to the
Master Servicer within ten (10) Business Days of the Special Servicer's receipt
of such request). For purposes of this Agreement, "disbursement of earnouts or
holdback amounts" shall mean the disbursement or funding to a borrower of
previously unfunded, escrowed or otherwise reserved portions of the loan
proceeds of the applicable Mortgage Loan until certain conditions precedent
thereto relating to the satisfaction of performance-related criteria (i.e.,
project reserve thresholds, lease-up requirements, sales requirements, etc.), as
set forth in the applicable loan documents, have been satisfied.
Section 3.31 Matters Relating to Certain Mortgage Loans. (a) With
respect to the Mortgage Loan identified as Loan No. 12 in the Mortgage Loan
Schedule and referred to as the "Lakeview Square Mall" loan, the Master Servicer
shall not permit the release or substitution of an improved parcel unless a
REMIC opinion is obtained, which opinion shall be at the expense of the related
borrower.
(b) With respect to the Mortgage Loan known as NL Ventures,
identified as Loan No. 42 in the Mortgage Loan Schedule, neither the Master
Servicer nor the Special Servicer, as applicable, shall exercise any
discretionary right it has with respect to establishing a release price, as
provided in Section 3.07(i) of the related Note.
Section 3.32 Certain Intercreditor Matters Relating to the Whole
Loans. (a) With respect to the Serviced Whole Loans, except for those duties to
be performed by, and notices to be furnished by, the Trustee under this
Agreement, the Master Servicer or the Special Servicer, as applicable, shall
perform such duties and furnish such notices, reports and information on behalf
of the Trust Fund as may be the obligation of the Trust under the related
Co-Lender Agreement.
(b) The Master Servicer shall maintain a register (the "Serviced
Companion Loan Noteholder Register") on which the Master Servicer shall
record the names and addresses of the Serviced Companion Loan Noteholders and
wire transfer instructions for such Serviced Companion Loan Noteholders from
time to time, to the extent such information is provided in writing to the
Master Servicer by a Serviced Companion Loan Noteholder. Each Serviced
Companion Loan Noteholder has agreed to inform the Master Servicer of its
name, address, taxpayer identification number and wiring instructions (to the
extent the foregoing information is not already contained in the related
Co-Lender Agreement) and of any transfer thereof (together with any
instruments of transfer).
In no event shall the Master Servicer be obligated to pay any party
the amounts payable to a Serviced Companion Loan Noteholder hereunder other than
the Person listed as the applicable Serviced Companion Loan Noteholder on the
Serviced Companion Loan Noteholder Register. In the event that a Serviced
Companion Loan Noteholder transfers the related Serviced Companion Loan without
notice to the Master Servicer, the Master Servicer shall have no liability
whatsoever for any misdirected payment on such Serviced Companion Loan and shall
have no obligation to recover and redirect such payment.
The Master Servicer shall promptly provide the names and addresses
of any Serviced Companion Loan Noteholder to any party hereto, any related B
Loan Noteholder or any successor thereto upon written request, and any such
party or successor may, without further investigation, conclusively rely upon
such information. The Master Servicer shall have no liability to any Person for
the provision of any such names and addresses.
(c) The Directing Certificateholder shall not owe any fiduciary
duty to the Trustee, the Master Servicer, any Special Servicer, any
Certificateholder (including the Controlling Class Representative, if
applicable) or any noteholder of a Serviced Whole Loan, as applicable. The
Directing Certificateholder will not have any liability to the
Certificateholders (including the Controlling Class Representative, if
applicable) or any other noteholder of a Serviced Whole Loan, as applicable,
for any action taken, or for refraining from the taking of any action or the
giving of any consent, pursuant to this Agreement, or for errors in judgment.
By its acceptance of a Certificate, each Certificateholder will be deemed to
have confirmed its understanding that the Directing Certificateholder may
take or refrain from taking actions that favor the interests of the Directing
Certificateholder over the Certificateholders or such other noteholder of a
Serviced Whole Loan, as applicable, and that such Directing Certificateholder
may have special relationships and interests that conflict with the interests
of the Certificateholders or such other noteholder of a Serviced Whole Loan,
as applicable, and will be deemed to have agreed to take no action against
such Directing Certificateholder or any of its officers, directors,
employees, principals or agents as a result of such a special relationship or
conflict, and that such Directing Certificateholder shall not be liable by
reason of its having acted or refrained from acting solely in the interests
of the Directing Certificateholder.
(d) With respect to any Serviced Whole Loan, the Directing
Certificateholder shall be entitled to exercise the consent rights, cure
rights and purchase rights, as applicable, to the extent set forth in the
applicable Co-Lender Agreement, in accordance with the terms of the related
Co-Lender Agreement and this Agreement.
(e) The Master Servicer shall deliver, or cause to be delivered,
to the Trustee, promptly following receipt of any servicing reports from the
BACM 2006-1 Servicer, the BACM 2006-1 Special Servicer or the BACM 2006-1
Trustee with respect to the Desert Passage Whole Loan.
Promptly following the Closing Date, the Trustee shall send written
notice (in the form of Exhibit U attached hereto), accompanied by a certified
copy of an executed version of this Agreement, with respect to the Desert
Passage Mortgage Loan, to each of the BACM 2006-1 Servicer, the BACM 2006-1
Special Servicer and the BACM 2006-1 Trustee stating that, as of the Closing
Date, the Trustee is the holder of the Desert Passage Mortgage Loan and
directing each such recipient to remit to the Master Servicer all amounts
payable to, and to forward, deliver or otherwise make available, as the case may
be, to the Master Servicer all reports, statements, documents, communications
and other information that are to be forwarded, delivered or otherwise made
available to, the holder of the Desert Passage Mortgage Loan under the Desert
Passage Intercreditor Agreement and the BACM 2006-1 Pooling and Servicing
Agreement. Such notice shall also provide contact information for the Trustee,
the Master Servicer, the Special Servicer and the Directing Certificateholder.
In the event that the BACM 2006-1 Servicer, BACM 2006-1 Special
Servicer or BACM 2006-1 Trustee shall be replaced in accordance with the terms
of the BACM 2006-1 Pooling and Servicing Agreement, promptly upon notice
thereof, the Master Servicer and the Special Servicer shall, upon request,
acknowledge its successor as the successor to the related BACM 2006-1 Servicer,
BACM 2006-1 Special Servicer or BACM 2006-1 Trustee, as the case may be.
Section 3.33 Rights of Holders of the Buckeye Portfolio Whole Loan
The Master Servicer and Special Servicer acknowledge and agree that
the Buckeye Portfolio Whole Loan is subject to the terms and provisions of the
Buckeye Portfolio Intercreditor Agreement and each agrees to service the Buckeye
Portfolio Whole Loan in accordance with the Buckeye Portfolio Intercreditor
Agreement and this Agreement, including, without limitation, effecting
distributions and allocating reimbursement of expenses in accordance with the
Buckeye Portfolio Intercreditor Agreement and performing the obligations of the
"Note A Holder" thereunder. Notwithstanding anything to the contrary in this
Agreement, each of the Master Servicer and the Special Servicer agrees not to
take any action with respect any of the Buckeye Portfolio Whole Loan or the
related Mortgaged Property without the prior consent of the applicable Companion
Loan Noteholder to the extent that the Buckeye Portfolio Intercreditor Agreement
provides that such Companion Loan Noteholder is entitled or required to consent
to such action, to the extent such action or inaction does not cause a violation
of the terms of the related Mortgage Loan Documents, applicable law or the
Servicing Standard, and agree to deliver such reports and summaries as required
by the Buckeye Portfolio Intercreditor Agreement. Each of the Master Servicer
and Special Servicer acknowledges and agrees that such Companion Loan Noteholder
has the right to purchase the related Mortgage Loan pursuant to the terms and
conditions of the Buckeye Portfolio Intercreditor Agreement.
Further, pursuant to the terms of the Buckeye Portfolio
Intercreditor Agreement, it is contemplated that the related Borrower under the
Buckeye Portfolio Whole Loan will remit payments on the Buckeye Portfolio
Mortgage Loan to the Master Servicer, and for the Buckeye Portfolio B Loan
(regardless of whether it has been securitized or is securitized in the future),
the related Borrower will remit payments on the Buckeye Portfolio B Loan
directly to the servicer for such B Loan; provided, however, that under the
circumstances identified in the Buckeye Portfolio Intercreditor Agreement, the
related Borrower under the Buckeye Portfolio B Loan (even after the Buckeye
Portfolio B Loan has been securitized) will be required to remit payments on the
Buckeye Portfolio B Loan directly to the Master Servicer or the Special Servicer
under this Agreement.
Additionally, if at any time with respect to the Buckeye Portfolio
Whole Loan an event of default enumerated in Section 8(a) of the Buckeye
Portfolio Intercreditor Agreement occurs and the Buckeye Portfolio Mortgage Loan
becomes subject to a purchase option, as described under Section 8 of the
Buckeye Portfolio Intercreditor Agreement, the related Buckeye Portfolio B Loan
Noteholder will have the right to purchase the Buckeye Portfolio Mortgage Loan
at the defaulted mortgage loan purchase price described therein.
Notwithstanding anything to the contrary in this Agreement but
subject to the initial paragraph of this Section 3.33, the Master Servicer or
the Special Servicer, as applicable, shall be required to obtain the prior
written consent of the Buckeye Portfolio B Loan Noteholder with respect to any
amendment, deferral, extension, waiver or other modification of the Buckeye
Portfolio Whole Loan enumerated in, and under the circumstances described in,
Section 16(a) of the Buckeye Portfolio Intercreditor Agreement.
With respect to the Buckeye Portfolio Whole Loan, the Master
Servicer or Special Servicer, as applicable, shall, when provided or available
to it from time to time, deliver to the Buckeye Portfolio B Loan Noteholder (i)
a summary of the current status of principal and interest payments on such
Serviced Whole Loan, (ii) copies of all financial statements and reports
required pursuant to the related Mortgage Loan Documents, to the extent in the
Master Servicer's or Special Servicer's, as applicable, possession, (iii)
current information, if any, as to the value of the related Mortgage Property,
to the extent in the Master Servicer's or Special Servicer's, as applicable,
possession, (iv) a copy of any other agreements that govern the administration
of such Serviced Whole Loan, (v) copies of any default or acceleration notices
sent to the related Borrower, (vi) copies of each other report provided under
this Agreement to the Certificateholders and/or the Trustee, including, without
limitation, the CMSA reports, (vii) copies of all requests and material
correspondence relating to such Serviced Whole Loan and (viii) other information
with respect to the Borrower or such Serviced Whole Loan, reasonably requested
by the Buckeye Portfolio B Loan Noteholder, to the extent in the Master
Servicer's or Special Servicer's, as applicable, possession. Notwithstanding
anything to the contrary in this paragraph, the Master Servicer may deliver any
information required by this paragraph by making it available on its website.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standard, the servicing rights and obligations of
the Special Servicer with respect to the Buckeye Portfolio B Loan will be
limited pursuant to the terms of the Buckeye Portfolio Intercreditor Agreement
prior to, or after the discontinuance of, a "Material Default" (as defined in
Section 3(b) of the Buckeye Portfolio Intercreditor Agreement).
Section 3.34 Rights of the Holders of the Valley Forge Whole Loan.
The Master Servicer and Special Servicer acknowledge and agree that
the Valley Forge Whole Loan is subject to the terms and provisions of the Valley
Forge Intercreditor Agreement and each agrees to service the Valley Forge Whole
Loan in accordance with the Valley Forge Intercreditor Agreement and this
Agreement, including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the Valley Forge Intercreditor
Agreement and performing the obligations of the "Note A Holder" thereunder.
Notwithstanding anything to the contrary in this Agreement, each of the Master
Servicer and the Special Servicer agrees not to take any action with respect any
of the Valley Forge Whole Loan or the related Mortgaged Property without the
prior consent of the applicable Companion Loan Noteholder to the extent that the
Valley Forge Intercreditor Agreement provides that such Companion Loan
Noteholder is entitled or required to consent to such action, to the extent such
action or inaction does not cause a violation of the terms of the related
Mortgage Loan Documents, applicable law or the Servicing Standard, and agrees to
deliver such reports and summaries as may be required hereunder. Each of the
Master Servicer and Special Servicer acknowledges and agrees that such Companion
Loan Noteholder has the right to purchase the related Mortgage Loan pursuant to
the terms and conditions of the Valley Forge Intercreditor Agreement.
Pursuant to Section 11 of the Valley Forge Intercreditor Agreement,
if the Valley Forge Mortgage Loan is a Specially Serviced Loan (as to which an
event of default enumerated in Section 10 of the Valley Forge Intercreditor
Agreement has occurred and is continuing), the Valley Forge B Loan Noteholder
will have the right to purchase the Valley Forge Mortgage Loan at the defaulted
mortgage loan purchase price described therein. Further, pursuant to Section
6(c) of the Valley Forge Intercreditor Agreement, the Valley Forge B Loan
Noteholder has the right to reverse a Control Appraisal Event (as defined in the
Valley Forge Intercreditor Agreement) by supplementing the existing Mortgaged
Property with certain Control Retention Collateral (as defined in the Valley
Forge Intercreditor Agreement), subject to certain conditions and limitations as
set forth in Section 6(c) of the Valley Forge Intercreditor Agreement. Also,
pursuant to Section 10 of the Valley Forge Intercreditor Agreement, the Valley
Forge B Loan Noteholder has the right to cure monetary and non-monetary defaults
of the Borrower under the Valley Forge Mortgage Loan, subject to certain
conditions and limitations, as more particularly set forth in such Section 10.
Notwithstanding anything to the contrary in this Agreement but
subject to the initial paragraph of this Section 3.34, the Master Servicer or
the Special Servicer, as applicable, shall be required to obtain the prior
written consent of the Valley Forge B Loan Noteholder with respect to, among
other things, any amendment, waiver or other modification of the Valley Forge
Whole Loan enumerated in, and under the circumstances described in, Section 20
of the Valley Forge Intercreditor Agreement.
With respect to the Valley Forge Whole Loan, the Master Servicer or
Special Servicer, as applicable, shall, when provided or available to it from
time to time, deliver to the Valley Forge B Loan Noteholder (i) a summary of the
current status of principal and interest payments on such Serviced Whole Loan,
(ii) copies of all financial statements and reports required pursuant to the
related Mortgage Loan Documents, to the extent in the Master Servicer's or
Special Servicer's, as applicable, possession, (iii) current information, if
any, as to the value of the related Mortgage Property, to the extent in the
Master Servicer's or Special Servicer's, as applicable, possession, (iv) a copy
of any other agreements that govern the administration of such Serviced Whole
Loan, (v) copies of any default or acceleration notices sent to the related
Borrower, (vi) copies of each other report provided under this Agreement to the
Certificateholders and/or the Trustee, including, without limitation, the CMSA
reports, (vii) copies of all requests and material correspondence relating to
such Serviced Whole Loan and (viii) other information with respect to the
Borrower or such Serviced Whole Loan, reasonably requested by the Valley Forge B
Loan Noteholder, to the extent in the Master Servicer's or Special Servicer's,
as applicable, possession. Notwithstanding anything to the contrary in this
paragraph, the Master Servicer may deliver any information required by this
paragraph by making it available on its website.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) (i) [Reserved]
(ii) On each Distribution Date, amounts held in the Lower-Tier
Distribution Account shall be withdrawn (to the extent of the Available
Funds, including or reduced by, to the extent required by Section 3.05(f),
the Withheld Amounts, plus any amount withdrawn from the Excess
Liquidation Proceeds Account pursuant to Section 3.05(j)) in the case of
all Classes of Lower-Tier Regular Interests (such amount, the "Lower-Tier
Distribution Amount"). Each Class of Lower-Tier Regular Interests shall be
deemed to have received distributions in respect of principal in an amount
equal to the amount of principal actually distributable to its respective
Corresponding Certificates as provided in Section 4.01(b). As of any date,
the principal balance of each Lower-Tier Regular Interest shall equal the
Lower-Tier Principal Balance thereof. On each Distribution Date,
distributions of interest made in respect of any Class of Pooled Regular
Certificates on each Distribution Date pursuant to Section 4.01(b) or
Section 9.01 shall be deemed to have first been distributed from the
Lower-Tier REMIC to the Upper-Tier REMIC in respect of its Corresponding
Lower-Tier Regular Interest; provided that each Pooled Lower-Tier Regular
Interest shall be deemed to have received distributions in respect of
interest in an amount equal to the Interest Accrual Amount and Class
Interest Shortfalls in respect of the Class X Strip Rate of its
Corresponding Certificates, in each case to the extent actually
distributable thereon as provided in Section 4.01(b).
All distributions of reimbursements of Realized Losses and
Additional Trust Fund Expenses made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(b) shall be
deemed to have first been distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest.
On each Distribution Date, the Trustee shall apply amounts related
to each Prepayment Premium and Yield Maintenance Charge then on deposit in the
Lower-Tier Distribution Account and received during or prior to the related
Collection Period to the Lower-Tier Regular Interests in proportion to the
amount of principal distributed to each Class of Lower-Tier Regular Interests on
such Distribution Date pursuant to this Section 4.01(a)(ii).
The Trustee shall be deemed to deposit the Lower-Tier Distribution
Amount and the amount of any Prepayment Premiums and any Yield Maintenance
Charges distributed to the Upper-Tier REMIC pursuant to this Section 4.01(a)(ii)
into the Upper-Tier Distribution Account. Any amount in respect of the Mortgage
Pool that remains in the Lower-Tier Distribution Account on each Distribution
Date after distribution of the Lower-Tier Distribution Amount and distribution
of Prepayment Premiums and Yield Maintenance Charges in respect of the Mortgage
Pool shall be distributed to the Holders of the Class LR Certificates (but only
to the extent of such amount for such Distribution Date remaining in the
Lower-Tier Distribution Account, if any).
(b) On each Distribution Date occurring prior to the Crossover
Date, the Trustee shall withdraw from the Upper-Tier Distribution Account the
amounts deposited in the Upper-Tier Distribution Account in respect of such
Distribution Date pursuant to Section 4.01(a)(ii), and distribute such amount
to Certificateholders in the amounts and in the order of priority set forth
below:
(i) First, to pay interest, pro rata, (i) on the Class A-1, Class
A-2, Class A-3, Class A-AB and Class A-4 Certificates from the portion of
the Available Funds for such Distribution Date attributable to Mortgage
Loans in Loan Group 1 up to an amount equal to the aggregate Interest
Accrual Amount for those Classes, in each case in accordance with their
respective interest entitlements; (ii) on the Class A-1A Certificates from
the portion of the Available Funds for such Distribution Date attributable
to Mortgage Loans in Loan Group 2 up to an amount equal to the aggregate
Interest Accrual Amount for such Class; and (iii) on the Class X
Certificates from the Available Funds for such Distribution Date up to an
amount equal to the Interest Accrual Amount for such Class; provided,
however, if on any Distribution Date, the Available Funds (or applicable
portion thereof) are insufficient to pay in full the total Interest
Accrual Amount to be paid to any of the Classes described in this
subclause (i), the Available Funds for such Distribution Date will be
allocated among all those Classes pro rata, in accordance with their
respective interest entitlements;
(ii) Second, pro rata, to the Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-1A and Class X Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Classes,
(iii) Third, in reduction of the Certificate Balances thereof,
(A) to the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class
A-4 Certificates,
(1) first, to the Class A-AB Certificates, in an amount
up to the Group 1 Principal Distribution and, after the
outstanding Certificate Balance of the Class A-1A Certificates
have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A
Certificates have been made on such Distribution Date, until
the outstanding Certificate Balance of the Class A-AB
Certificates is reduced to the Class A-AB Planned Principal
Balance,
(2) then, to the Class A-1 Certificates, in an amount
equal to the Group 1 Principal Distribution Amount (or the
portion of it remaining after distributions on the Class A-AB
Certificates pursuant to (1) above in this clause Third) for
such Distribution Date and, after the Class A-1A Certificates
have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class A-1A
Certificates, and after payments to the Class A-AB
Certificates pursuant to (1) above in this clause Third have
been made on such Distribution Date, until the Class A-1
Certificates are reduced to zero,
(3) then, to the Class A-2 Certificates, in an amount
equal to the Group 1 Principal Distribution Amount (or the
portion thereof remaining after distributions to the Class A-1
Certificates and distributions on the Class A-1 Certificates)
for such Distribution Date and, after the Class A-AB
Certificates pursuant to (1) above in this clause Third) for
such Distribution Date and, after the Class A-1A Certificates
have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class
A-1A, and Class A-1 Certificates and payments to the Class
A-AB Certificates pursuant to (1) above in this clause Third
have been made on such Distribution Date, until the Class A-2
Certificates are reduced to zero,
(4) then, to the Class A-3 Certificates, in an amount
equal to the Group 1 Principal Distribution Amount (or the
portion of it remaining after distributions on the Class A-1
and Class A-2 Certificates and distributions on the Class A-AB
Certificates pursuant to (1) above in this clause Third) for
such Distribution Date and, after the Class A-1A Certificates
have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Class
A-1A, Class A-1 and Class A-2 Certificates and payments to the
Class A-AB Certificates pursuant to (1) above in this clause
Third have been made on such Distribution Date, until the
Class A-3 Certificates have been reduced to zero,
(5) then, to the Class A-AB Certificates, in an amount
equal to the Group 1 Principal Distribution Amount (or the
portion of it remaining after distributions on the Class A-1,
Class A-2 and Class A-3 Certificates) for such Distribution
Date and, after the Class A-1A Certificates have been reduced
to zero, the Loan Group 2 Principal Distribution Amount
remaining after payments to the Class A-1A, Class A-1, Class
A-2 and Class A-3 Certificates have been made on such
Distribution Date, until the Class A-AB Certificates have been
reduced to zero,
(6) then, to the Class A-4 Certificates, in an amount
equal to the Group 1 Principal Distribution Amount (or the
portion of it remaining after distributions to the Class A-1,
Class A-2 and Class A-3 Certificates and distributions on the
Class A-AB Certificates pursuant to (1) above in this clause
Third) for such Distribution Date and, after the Class A-1A
Certificates have been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the
Class A-1A, Class A-1, Class A-2 and Class A-3 Certificates
and payments to the Class A-AB Certificates pursuant to (1)
above in this clause Third have been made on such Distribution
Date, until the Class A-4 Certificates have been reduced to
zero,
(B) to the Class A-1A Certificates, in an amount equal to the
Loan Group 2 Principal Distribution Amount for such Distribution
Date and to the Class A-1A Certificates, in an amount equal to the
Loan Group 1 Principal Distribution Amount remaining after payments
to the Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4
Certificates have been made on such Distribution Date, until the
Class A-1A Certificates are reduced to zero;
(iv) Fourth, to the Class A-1, Class X-0, Xxxxx X-0, Class A-AB,
Class A-4 and Class A-1A Certificates, pro rata, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(v) Fifth, to the Class A-M Certificates in respect of interest, up
to an amount equal to the aggregate Interest Accrual Amount of such Class;
(vi) Sixth, to the Class A-M Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(vii) Seventh, to the Class A-M Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(viii) Eighth, to the Class A-M Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(ix) Ninth, to the Class A-J Certificates in respect of interest, up
to an amount equal to the aggregate Interest Accrual Amount of such Class;
(x) Tenth, to the Class A-J Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(xi) Eleventh, to the Class A-J Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xii) Twelfth, to the Class A-J Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xiii) Thirteenth, to the Class B Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xiv) Fourteenth, to the Class B Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xv) Fifteenth, to the Class B Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xvi) Sixteenth, to the Class B Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xvii) Seventeenth, to the Class C Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xviii) Eighteenth, to the Class C Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xix) Nineteenth, to the Class C Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less the amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xx) Twentieth, to the Class C Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, up to an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxi) Twenty-first, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxii) Twenty-second, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxiii) Twenty-third, to the Class D Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxiv) Twenty-fourth, to the Class D Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxv) Twenty-fifth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxvi) Twenty-sixth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxvii) Twenty-seventh, to the Class E Certificates in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxviii) Twenty-eighth, to the Class E Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxix) Twenty-ninth, to the Class F Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxx) Thirtieth, to the Class F Certificates in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(xxxi) Thirty-first, to the Class F Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less the amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xxxii) Thirty-second, to the Class F Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxxiii) Thirty-third, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxiv) Thirty-fourth, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxv) Thirty-fifth, to the Class G Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxvi) Thirty-sixth, to the Class G Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxxvii) Thirty-seventh, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxviii) Thirty-eighth, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxix) Thirty-ninth, to the Class H Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xl) Fortieth, to the Class H Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xli) Forty-first, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlii) Forty-second, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xliii) Forty-third, to the Class J Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xliv) Forty-fourth, to the Class J Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xlv) Forty-fifth, to the Class K Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlvi) Forty-sixth, to the Class K Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xlvii) Forty-seventh, to the Class K Certificates in reduction of
the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xlviii) Forty-eighth, to the Class K Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xlix) Forty-ninth, to the Class L Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(l) Fiftieth, to the Class L Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(li) Fifty-first, to the Class L Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(lii) Fifty-second, to the Class L Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(liii) Fifty-third, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(liv) Fifty-fourth, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lv) Fifty-fifth, to the Class M Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(lvi) Fifty-sixth, to the Class M Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lvii) Fifty-seventh, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(lviii) Fifty-eighth, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lix) Fifty-ninth, to the Class N Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(lx) Sixtieth, to the Class N Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lxi) Sixty-first, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(lxii) Sixty-second, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lxiii) Sixty-third, to the Class O Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(lxiv) Sixty-fourth, to the Class O Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lxv) Sixty-fifth, to the Class P Certificates, in respect of
interest, up to an amount equal to the Interest Accrual Amount of such
Class;
(lxvi) Sixty-sixth, to the Class P Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lxvii) Sixty-seventh, to the Class P Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses until the Certificate Balance of
such Class is reduced to zero;
(lxviii) Sixty-eighth, to the Class P Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class; and
(lxix) Sixty-ninth, to the Class R and Class LR Certificates.
All references to "pro rata" in the preceding clauses with respect
to interest and Class Interest Shortfalls shall mean pro rata based on the
amount distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the Crossover Date, the Principal Distribution Amount will be
distributed to the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and
Class A-1A Certificates, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero.
(c) On each Distribution Date, following the distribution from the
Lower-Tier Distribution Account in respect of the Lower-Tier Regular
Interests pursuant to Section 4.01(a)(ii), the Trustee shall make
distributions of any Prepayment Premiums and Yield Maintenance Charges
received in the related Collection Period from amounts deposited in the
Upper-Tier Distribution Account pursuant to Section 3.05(g), as follows:
(i) Prepayment Premiums, Yield Maintenance Charges received with
respect to Group 1 Mortgage Loans shall be distributed to the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-M, Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G and Class H Certificates,
in an amount equal to the product of (a) a fraction, not greater than one,
the numerator of which is the amount distributed as principal to such
Class on such Distribution Date, and whose denominator is the total amount
distributed as principal to the Class A-1, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates on such Distribution Date, (b)
the Base Interest Fraction for the related Principal Prepayment and such
Class of Certificates and (c) the aggregate amount of Prepayment Premiums
or Yield Maintenance Charges, as applicable, collected on such Principal
Prepayment during the related Due Period. Any Yield Maintenance Charges or
Prepayment Premiums collected during the related Collection Period
remaining after such distributions will be distributed to the holders of
the Class X Certificates. No Prepayment Premiums or Yield Maintenance
Charges in respect of the Group 1 Mortgage Loans will be distributed to
holders of any other Class of Certificates; and
(ii) Prepayment Premiums and Yield Maintenance Charges received with
respect to the Group 2 Mortgage Loans shall be distributed to the Class
A-1A Certificates in an amount equal to the product of (a) a fraction, not
greater than one, the numerator of which is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator
is the total amount distributed as principal to the Class A-1A
Certificates on such Distribution Date, (b) the Base Interest Fraction for
the related Principal Prepayment and such Class of Certificates and (c)
the aggregate amount of Prepayment Premiums or Yield Maintenance Charges,
as applicable, collected on such Principal Prepayment during the related
Due Period. Any Prepayment Premiums and Yield Maintenance Charges
collected during the related Due Period remaining after such distributions
shall be distributed to the Holders of the Class X Certificates. No
Prepayment Premiums or Yield Maintenance Charges in respect of the Group 2
Mortgage Loans will be distributed to holders of any other Class of
Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class B, Class C,
Class D, Class E, Class F, Class G and Class H Certificates to zero, the Trustee
shall distribute to the Class X Certificates all Prepayment Premiums and Yield
Maintenance Charges actually received during the related Due Period with respect
to the Mortgage Loans and remitted in respect of Lower-Tier Regular Interests
pursuant to Section 4.01(d).
(d) [Reserved]
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Excess Liquidation Proceeds Account (or sub-account thereof) and
shall distribute such amounts in the following manner:
(i) (A) from amounts in the Excess Liquidation Proceeds Account
allocable to a Mortgage Loan (other than the Serviced Whole Loan), to
reimburse the Holders of the Principal Balance Certificates (in the order
set forth in Section 4.01(b)) up to an amount equal to all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated to them
and unreimbursed after application of Available Funds for such
Distribution Date and (B) from amounts in the Excess Liquidation Proceeds
Account allocable to the Serviced Whole Loans, to reimburse the Holders of
the Principal Balance Certificates (in the order set forth in Section
4.01(b)), or in the case of a Serviced Whole Loan with a Serviced Pari
Passu Companion Loan, on a pro rata basis as between the related Mortgage
Loan and any related Serviced Pari Passu Companion Loan (based on their
respective outstanding principal balance), up to an amount equal to all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to them and unreimbursed after application of Available Funds
for such Distribution Date and any remaining amounts to the related
Serviced B Loan, if any; and
(ii) any amounts remaining in the Excess Liquidations Proceeds
Account after such distributions on any Distribution Date that (a) are
allocable to the Mortgage Loans, shall be applied to offset future
Realized Losses and Additional Trust Fund Expenses and, upon termination
of the Trust Fund, any amounts remaining in the Excess Liquidations
Proceeds Account (other than amounts allocable to the Serviced Whole
Loans) shall be distributed by the Trustee to the Class LR Certificates;
and (b) are allocable to the Serviced Companion Loans, shall be remitted
within one Business Day after each such Distribution Date by the Trustee
to the Master Servicer (which shall remit to the Serviced Companion Loan
Noteholders in accordance with Section 3.05(i)).
Amounts paid with respect to the Mortgage Loans from the Excess
Liquidation Proceeds Account pursuant to the preceding clauses (i) and
(ii) shall first be deemed to have been distributed to the Lower-Tier
Regular Interests in reimbursement of Realized Losses and Additional Trust
Fund Expenses previously allocated thereto in the same manner as provided
in Section 4.01(f). Amounts paid from the Excess Liquidation Proceeds
Account will not reduce the Certificate Balances of the Principal Balance
Certificates receiving such distributions.
(f) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to this Section 4.01(b), the
Trustee shall calculate the amount, if any, of Realized Losses. Any
allocation of Realized Losses to a Class of Principal Balance Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Realized Losses allocated to a Class of Principal Balance
Certificates shall be allocated among the respective Certificates of such
Class in proportion to the Percentage Interests evidenced thereby. The
allocation of Realized Losses shall constitute an allocation of losses and
other shortfalls experienced by the Trust Fund. Reimbursement of previously
allocated Realized Losses will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such
reimbursement is made. To the extent any Nonrecoverable Advances (plus
interest thereon) that were reimbursed from principal collections on the
Mortgage Loans and previously resulted in a reduction of the Principal
Distribution Amount are subsequently recovered on the related Mortgage Loan,
the amount of such recovery will be added to the Certificate Balance of the
Class or Classes of Certificates that previously were allocated Realized
Losses, in sequential order, in each case up to the amount of the
unreimbursed Realized Losses allocated to such Class. If the Certificate
Balance of any Class is so increased, the amount of unreimbursed Realized
Losses of such Class shall be decreased by such amount.
The Certificate Balances of each Class of Principal Balance
Certificates will be reduced without distribution on any Distribution Date as a
write-off to the extent of any Realized Losses allocated to such Class with
respect to such date. Any such write-offs will be applied to Classes of
Principal Balance Certificates in the following order, in each case until the
Certificate Balance of such Class is reduced to zero: first, to the Class P
Certificates; second, to the Class O Certificates; third, to the Class N
Certificates; fourth, to the Class M Certificates; fifth, to the Class L
Certificates; sixth, to the Class K Certificates; seventh, to the Class J
Certificates; eighth, to the Class H Certificates; ninth, to the Class G
Certificates; tenth, to the Class F Certificates; eleventh, to the Class E
Certificates; twelfth, to the Class D Certificates; thirteenth, to the Class C
Certificates; fourteenth, to the Class B Certificates; fifteenth, to the Class
A-M Certificates; sixteenth, to the Class A-J Certificates; and finally, to the
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4 and Class A-1A
Certificates, pro rata, based on their respective Certificate Balances. Any
amounts recovered in respect of amounts previously written off as Realized
Losses shall be distributed to the Classes of Principal Balance Certificates
described above in reverse order of allocation of Realized Losses thereto in
accordance with Section 4.01(b). Additional Trust Fund Expenses and shortfalls
in Available Funds due to extraordinary expenses of the Trust Fund (including
indemnification expenses), a reduction in the Mortgage Rate on a Mortgage Loan
by a bankruptcy court pursuant to a plan of reorganization or pursuant to any of
its equitable powers, or otherwise, shall be treated as and allocated in the
same manner as Realized Losses.
Realized Losses, Additional Trust Fund Expenses and such other
amounts described above which are applied to each Class of Principal Balance
Certificates will be allocated to reduce the Lower-Tier Principal Balance(s) of
the Corresponding Lower-Tier Regular Interests in the same manner as principal
is allocated thereto pursuant to Section 4.01(a)(ii).
(g) All amounts distributable to a Class of Certificates pursuant
to this Section 4.01 on each Distribution Date shall be allocated pro rata
among the outstanding Certificates in each such Class based on their
respective Percentage Interests. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
(h) Except as otherwise provided in Section 9.01 with respect to
an Anticipated Termination Date, the Trustee shall, no later than the
fifteenth day of the month in the month preceding the month in which the
final distribution with respect to any Class of Certificates is expected to
be made, mail to each Holder of such Class of Certificates on such date a
notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it that the final distribution with respect
to such Class of Certificates will be made on such Distribution
Date, but only upon presentation and surrender of such Certificates
at the office of the Trustee therein specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificates from and after
such Distribution Date;
provided, however, that the Class R and Class LR Certificates shall remain
outstanding until there is no other Class of Certificates or Lower-Tier Regular
Interests outstanding.
Any funds not distributed to any Holder or Holders of such Classes
of Certificates on such Distribution Date because of the failure of such Holder
or Holders to tender their Certificates shall, on such date, be set aside and
held in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(h) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Holders to surrender their Certificates
for cancellation to receive the final distribution with respect thereto. If
within one year after the second notice not all of such Certificates shall have
been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(h). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall accrue for its
benefit.
(i) Shortfalls in Available Funds resulting from Excess Prepayment
Interest Shortfalls shall be allocated to, and Servicer Prepayment Interest
Shortfalls shall be deemed distributed to, each Class of Pooled Regular
Certificates, pro rata, based upon the Interest Accrual Amount distributable
to each such Class prior to reduction by such Excess Prepayment Interest
Shortfalls. Servicer Prepayment Interest Shortfalls shall be deposited by the
Master Servicer into the Collection Account on or prior to the Servicer
Remittance Date.
(j) On each Distribution Date, any Excess Interest received with
respect to the Mortgage Loans during the related Collection Period shall be
distributed to the Holders of the Class S Certificates from the Grantor Trust
Distribution Account established pursuant to Section 3.05(c). Any Excess
Interest remaining in the Grantor Trust Distribution Account on the final
Distribution Date shall be distributed to the Holders of the Class S
Certificates.
(k) On the final Servicer Remittance Date, the Master Servicer
shall withdraw from the Collection Account and deliver to the Trustee who
shall distribute to the Mortgage Loan Sellers, any Loss of Value Payments
relating to the Mortgage Loans that it is servicing transferred from the Loss
of Value Reserve Fund to the Collection Account on the immediately preceding
Servicer Remittance Date in accordance with Section 3.06(f)(v).
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others. (a) On each Distribution
Date, the Trustee shall make available to the general public a statement
(substantially in the form set forth as Exhibit K attached hereto and based on
the information set forth in (i) the CMSA Reporting Package prepared by the
Master Servicer (other than the Reconciliation of Funds Report and the CMSA
Special Servicer Defaulted Loan File) and the other reports prepared by the
Master Servicer and Special Servicer relating to such Distribution Date,
including the CMSA Special Servicer Defaulted Loan File, upon which information
the Trustee may conclusively rely, in accordance with CMSA guidelines and (ii)
the Reconciliation of Funds Report prepared by the Trustee) as to distributions
made on such Distribution Date (each, a "Distribution Date Statement") setting
forth (with respect to each Class of Certificates) the following information:
(i) the Record Date, Interest Accrual Period, and Determination Date
for such Distribution Date;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other than
the Class S, Class X, Class R and Class LR Certificates) applied to reduce
the respective Certificate Balance thereof;
(iii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) the Interest Accrual Amount and/or (B) Prepayment Premiums;
(iv) the aggregate amount of Advances made in respect of the
Distribution Date and the amount on interest paid on Advances since the
prior Distribution Date (including, to the extent material, the general
use of funds advanced and general source of funds for reimbursements);
(v) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Master Servicer and the Special
Servicer for the related Determination Date and any other fees or expenses
accrued and paid from the Trust Fund;
(vi) the aggregate Stated Principal Balance of the Mortgage Loans
and any REO Loans outstanding immediately before and immediately after the
Distribution Date;
(vii) the number (as of the related and the next preceding
Determination Date), and the aggregate principal balance, weighted average
remaining term to maturity and weighted average mortgage rate (and
interest rates by distributional groups or ranges) of the Mortgage Loans
as of the related Determination Date;
(viii) the number and aggregate Stated Principal Balance of the
Mortgage Loans or Serviced Whole Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (c) delinquent 90 days or more, (D) that are
Specially Serviced Loans that are not delinquent, or (E) current, but not
Specially Serviced, as to which foreclosure proceedings have been
commenced, but not REO Property;
(ix) the Available Funds for such Distribution Date, and any other
cash flows received on the mortgage loans and applied to pay fees and
expenses (including the components of the Available Funds, or such other
cash flows);
(x) the amount of the distribution on the Distribution Date to the
holders of any class of Certificates allocable to Prepayment Premiums or
Yield Maintenance Charges;
(xi) the accrued Interest Accrual Amount in respect of each Class of
Certificates for such Distribution Date;
(xii) the Pass-Through Rate for each class of Certificates for the
Distribution Date and the next succeeding Distribution Date;
(xiii) the Principal Distribution Amount for the Distribution Date;
(xiv) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution Date,
separately identifying any reduction in the aggregate Certificate Balance
(or, if applicable, the aggregate Notional Balance) of each such Class due
to Realized Losses and/or Additional Trust Fund Expenses;
(xv) the fraction, expressed as a decimal carried to at least eight
places, the numerator of which is the then related Certificate Balance,
and the denominator of which is the related initial aggregate Certificate
Balance, for each class of Certificates (other than the Class S, Class R
and Class LR Certificates) immediately following the Distribution Date;
(xvi) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; and the total
Appraisal Reduction Amounts as of such Distribution Date on a loan-by-loan
basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans modified, extended or waived during the related Collection
Period, on a loan-by-loan basis (including a description of any material
modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the Collection Period or that have
cumulatively become material over time);
(xviii) the amount of any remaining unpaid Interest Shortfalls for
each Class of Certificates as of the Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment (other than Liquidation Proceeds and
Insurance Proceeds) during the related Collection Period and the amount of
Principal Prepayment occurring, together with the aggregate amount of
Principal Prepayments made during the related Collection Period;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
during the related Collection Period;
(xxi) the amount of the distribution to the holders of each class of
Certificates on the Distribution Date attributable to reimbursement of
Realized Losses;
(xxii) as to any Mortgage Loan repurchased by a Mortgage Loan Seller
or otherwise liquidated or disposed of during the related Collection
Period, (A) the Loan Number of the related Mortgage Loan and (B) the
amount of proceeds of any repurchase of a Mortgage Loan, Liquidation
Proceeds and/or other amounts, if any, received thereon during the related
Collection Period and the portion thereof included in the Available Funds
for such Distribution Date;
(xxiii) the amount on deposit in each account established and
maintained by the Trustee pursuant to this Agreement before and after
giving effect to the distribution made on such Distribution Date (and any
material account activity since the prior Distribution Date) provided,
however, with respect to any account not maintained by the Trustee, only
to the extent the Trustee has received such information and instructions
to report such information from the party maintaining such account;
(xxiv) the original and then current credit support levels for each
class of Certificates;
(xxv) the then current ratings for each class of Certificates;
(xxvi) with respect to any REO Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the city, state, property type, latest Debt Service Coverage Ratio,
the current Stated Principal Balance;
(xxvii) with respect to any REO Property included in the Trust Fund
at the close of business on the related Due Date (A) the Loan Number of
the related Mortgage Loan, (B) the value of such REO Property based on the
most recent Appraisal or valuation;
(xxviii) with respect to any Serviced REO Property sold or otherwise
disposed of during the related Collection Period and for which a Final
Recovery Determination has been made, (A) the Loan Number of the related
Mortgage Loan, (B) the Realized Loss attributable to such Mortgage Loan,
(C) the amount of sale proceeds and other amounts, if any, received in
respect of such Serviced REO Property during the related Collection Period
and the portion thereof included in the Available Funds for such
Distribution Date, (D) the date of the Final Recovery Determination and
(E) the balance of the Excess Liquidations Proceeds Account for such
Distribution Date; and
(xxix) the amount of the distribution on the Distribution Date to
the holders of the Class S and Residual Certificates;
(xxx) material breaches of mortgage loan representations and
warranties of which the Trustee, the Master Servicer or the Special
Servicer has received written notice; and
(xxxi) the amount of Realized Losses, Additional Trust Fund Expenses
and Class Interest Shortfalls, if any, incurred with respect to the
Mortgage Loans during the related Collection Period and in the aggregate
for all prior Collection Periods (except to the extent reimbursed or
paid).
In the case of information furnished pursuant to subclauses (i),
(ii), (iii), (vi) and (xix) above, the amounts shall be expressed as a dollar
amount in the aggregate for all Certificates of each applicable Class and per
$1,000 of original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall make available to each
Holder of a Class R or Class LR Certificate a copy of the reports made available
to the other Certificateholders on such Distribution Date and a statement
setting forth the amounts, if any, actually distributed with respect to the
Class R or Class LR Certificates on such Distribution Date. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that it
provided substantially comparable information pursuant to any requirements of
the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Certificateholder of record, a report summarizing on an
annual basis (if appropriate) the items provided to Certificateholders pursuant
to clauses (i) and (ii) above as to the applicable Class, aggregated for such
calendar year or applicable portion thereof during which such person was a
Certificateholder, together with such other information as may be required to
enable such Certificateholders to prepare their federal income tax returns. Such
information shall include the amount of original issue discount accrued on each
Class of Certificates held by Persons other than Holders exempted from the
reporting requirements and information regarding the expenses of the Trust Fund.
Such requirement shall be deemed to be satisfied to the extent such information
is provided pursuant to applicable requirements of the Code from time to time in
force.
(b) [Reserved]
(c) On each Distribution Date, the Trustee shall make available to
the general public via its internet website located at "xxx.xxxxxxx.xxx" (i)
the related Distribution Date Statement (in the form of Exhibit K, attached
hereto), (ii) to the extent received from the Master Servicer, the CMSA Loan
Periodic Update File (including the CMSA Advance Recovery Report), CMSA Loan
Setup File, CMSA Bond Level File and CMSA Collateral Summary File, (iii) as a
convenience (and not in furtherance of the distribution thereof under the
securities laws), the Prospectus and this Agreement and any other information
requested by the Depositor and (iv) any reports on Forms 10-D, 10K and 8-K
that have been filed with respect to the Trust through the XXXXX system (to
the extent prepared by the Trustee and within one Business Day of filing).
(d) On each Distribution Date beginning in July 2006, the Trustee
shall make available to any Privileged Person via its internet website (as
described above), to the extent received from the Master Servicer, to any
Privileged Person, the Underwriters and the Initial Purchasers via its
internet website, the CMSA Supplemental Servicer Reports, the CMSA Property
File, the CMSA Financial File and any other information requested by the
Depositor. The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer four Business Days
prior to the related Servicer Remittance Date.
(e) The information contained in the reports in the preceding
paragraph of this Section 4.02 shall be made available to the Trustee
electronically by the Master Servicer, if applicable, in the form of, or
reflected in, the CMSA Reporting Package and the CMSA Reports, and the
Trustee will make such reports and the Reconciliation of Funds Report
available via its internet website (as described above); provided, however,
that the Trustee will provide Certificateholders with a written copy of such
reports upon request in the manner described in such preceding paragraph.
(f) The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source. The Trustee shall
not be responsible for the accuracy or completeness of any information
supplied to it by the Master Servicer or Special Servicer that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or Special Servicer, as applicable, and the Trustee shall be
entitled to conclusively rely upon the Master Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute,
verify or re-evaluate any of the amounts or other information stated therein.
In connection with providing access to the Trustee's Internet website, the
Trustee may require registration and the acceptance of a disclaimer. The
Trustee shall not be liable for the dissemination of information in
accordance herewith.
(g) The Master Servicer may, at its sole cost and expense, make
available by electronic media, bulletin board service or Internet website (in
addition to making information available as provided herein) the CMSA
Reporting Package (including the Reconciliation of Funds Report and the CMSA
Special Servicer Defaulted Loan File prepared by the Trustee and the Special
Servicer respectively) and any other reports or other information the Master
Servicer is required or permitted to provide to any party to this Agreement,
the Rating Agencies or any Certificateholder or prospective Certificateholder
to the extent such action does not conflict with the terms of this Agreement,
the terms of the Mortgage Loans or applicable law. In connection with
providing access to its Internet website, the Master Servicer shall take
reasonable measures to ensure that only such parties listed above may access
such information including, without limitation, requiring registration, a
confidentiality agreement and acceptance of a disclaimer. The Master Servicer
shall not be liable for dissemination of this information in accordance with
this Agreement, provided that such information otherwise meets the
requirements set forth herein with respect to the form and substance of such
information or reports. The Master Servicer shall be entitled to attach to
any report provided pursuant to this subsection, any reasonable disclaimer
with respect to information provided, or any assumptions required to be made
by such report. Notwithstanding anything herein to the contrary, the Master
Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website any reports or other
information the Master Servicer is required or permitted to provide to any
Borrower with respect to such Borrower's Mortgage Loan to the extent such
action does not conflict with the terms of this Agreement, the terms of the
Mortgage Loans or applicable law. If the Master Servicer is required to
deliver any statement, report or other information under any provision of
this Agreement, then, the Master Servicer may satisfy such obligation by (x)
physically delivering a paper copy of such statement, report or information,
(y) delivering such statement, report or information in a commonly used
electronic format, or (z) making such statement, report or information
available on its website, unless this Agreement expressly specifies a
particular method of delivery; provided that all reports required to be
delivered to the Trustee shall be delivered in accordance with clause (x) or
(y).
(h) The Special Servicer shall from time to time (and, in any
event, as may be reasonably required by the Master Servicer) provide the
Master Servicer with such information in its possession regarding the
Specially Serviced Loans and REO Properties as may be reasonably necessary
for the Master Servicer to prepare each report and any supplemental
information to be provided by the Master Servicer to the Trustee. Neither the
Trustee nor the Depositor shall have any obligation to recompute, verify or
recalculate the information provided thereto by the Master Servicer. Unless
the Trustee has actual knowledge that any report or file received from the
Master Servicer contains erroneous information, the Trustee is authorized to
rely thereon in calculating and making distributions to Certificateholders
and allocating Realized Losses to the Certificates in accordance with Section
4.01 and preparing the statements to Certificateholders required by Section
4.02(a).
(i) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the
Certificate Registrar nor the Trustee shall have any responsibility for the
sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of
a Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(j) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Day's prior notice, for
review by any Certificateholder, any prospective investor in a Certificate or
any Serviced Companion Loan Noteholder (with respect to items (iv) - (vii),
only to the extent such information relates to the related Serviced Companion
Loan), the Depositor, the Master Servicer, the Special Servicer, any Rating
Agency and any other Person to whom the Depositor in its sole judgment, deems
that such disclosure is appropriate, originals or copies of documents
relating to the Mortgage Loans and any related REO Properties to the extent
in its possession, including, without limitation, the following items (except
to the extent prohibited by applicable law or under any of the related Loan
Documents): (i) this Agreement and any amendments thereto; (ii) all
Distribution Date Statements delivered to the Certificateholders and any
Companion Loan Noteholder since the Closing Date; (iii) all annual Officer's
Certificates and all accountants' reports delivered by the Master Servicer
and the Special Servicer to the Trustee since the Closing Date regarding
compliance with the relevant agreements; (iv) the most recent property
inspection report prepared by or on behalf of the Master Servicer or the
Special Servicer in respect of each Mortgaged Property and delivered to the
Trustee; (v) the most recent annual (or more frequent, if available)
operating statements, rent rolls (to the extent such rent rolls have been
made available by the related Borrower) and/or lease summaries and retail
sales information, if any, collected by or on behalf of the Master Servicer
or the Special Servicer in respect to each Mortgaged Property; (vi) any and
all modifications, waivers and amendments of the terms of a Mortgage Loan or
Serviced Whole Loan entered into by the Master Servicer and/or the Special
Servicer and delivered to the Trustee; and (vii) any and all Officer's
Certificates and other evidence delivered to or by the Trustee to support the
Master Servicer's or the Special Servicer's, as the case may be,
determination that any Advance, if made, would be a Nonrecoverable Advance.
Copies of any and all of the foregoing items will be available from the
Trustee upon request. The Trustee will be permitted to require payment by the
requesting party (other than a Rating Agency) of a sum sufficient to cover
the reasonable costs and expenses of making such information available and
providing any copies thereof. The Trustee's obligation under this Section
4.02(j) to make available any document is subject to the Trustee's receipt of
such document.
(k) On or within two Business Days following each Distribution
Date, the Trustee shall prepare and make available or furnish to the
Financial Market Publisher and each Underwriter, using commercially
reasonable format and media mutually agreed upon by the Trustee, the
Financial Market Publisher, each Underwriter and the Depositor, the following
information regarding each Mortgage Loan and any other information reasonably
requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the Stated Principal Balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02 to the extent it receives the necessary
underlying information from the Master Servicer or the Special Servicer and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Master Servicer or the Special Servicer to disseminate information for such
reason shall not be a breach hereof.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent shall
comply with all federal withholding requirements with respect to payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is a non-U.S. Person that
has furnished or caused to be furnished (i) an effective Form W-8BEN, Form
W-8IMY or Form W-9 or an acceptable substitute form or a successor form and who
is not a "10-percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(c) with respect to the Trust Fund or the Depositor, or (ii) an
effective Form W-8ECI or an acceptable substitute form or a successor form. In
the event the Paying Agent or its agent withholds any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate
the amount withheld to such Certificateholder. Any amount so withheld shall be
treated as having been distributed to such Certificateholder for all purposes of
this Agreement.
Section 4.04 REMIC Compliance. (a) The parties intend that the
Lower-Tier REMIC and the Upper-Tier REMIC shall constitute, and that the affairs
of the Lower-Tier REMIC and the Upper-Tier REMIC shall be conducted so as to
qualify it as, a "real estate mortgage investment conduit" as defined in, and in
accordance with, the REMIC Provisions at all times any Certificates are
outstanding, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each such REMIC and shall on behalf of each such REMIC:
(i) make an election, on behalf of each of the Lower-Tier REMIC and
the Upper-Tier REMIC, to be treated as a REMIC on Form 1066 for its first
taxable year, in accordance with the REMIC Provisions;
(ii) prepare and file, or cause to be prepared and filed, all
required Tax Returns for the Lower-Tier REMIC and the Upper-Tier REMIC,
using a calendar year as the taxable year for each of such REMIC as
required by the REMIC Provisions and other applicable federal, state or
local income tax laws;
(iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the IRS and applicable state and local tax
authorities all information reports as and when required to be provided to
them in accordance with the REMIC Provisions of the Code;
(iv) if the filing or distribution of any documents of an
administrative nature not addressed in clauses (i) through (iii) of this
Section 4.04(a) is then required by the REMIC Provisions in order to
maintain the status of the Lower-Tier REMIC and the Upper-Tier REMIC as a
REMIC or is otherwise required by the Code, prepare and file or
distribute, or cause to be prepared and signed and filed or distributed,
such documents with or to such Persons when and as required by the REMIC
Provisions or the Code or comparable provisions of state and local law;
(v) within 30 days of the Closing Date, obtain a taxpayer
identification number for each of the Lower-Tier REMIC and the Upper-Tier
REMIC on IRS Form SS-4 and (in the case of the Upper-Tier REMIC only),
furnish or cause to be furnished to the IRS, on Form 8811 or as otherwise
may be required by the Code, the name, title and address of the person
that the Certificateholders may contact for tax information relating
thereto (and the Trustee shall act as the representative of the Upper-Tier
REMIC for this purpose), together with such additional information as may
be required by such Form, and shall update such information at the time or
times and in the manner required by the Code (and the Depositor agrees
within 10 Business Days of the Closing Date to provide any information
reasonably requested by the Master Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and
(vi) maintain such records relating to the Lower-Tier REMIC and the
Upper-Tier REMIC as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis.
The Holder of the largest Percentage Interest in the Class R
Certificates shall be the tax matters person of the Upper-Tier REMIC, and the
Holder of the largest Percentage Interest in the Class LR Certificates shall be
the tax matters persons of the Lower-Tier REMIC pursuant to Treasury Regulations
Section 1.860F-4(d). The Trustee shall sign all Tax Returns and other reports
required by this Section 4.04 and promptly either file them or do as otherwise
provided by this Section. If more than one Holder shall hold an equal Percentage
Interest in the Class R or Class LR Certificates larger than that held by any
other Holder, the first such Holder to have acquired such Class R or Class LR
Certificates shall be such tax matters person. The Trustee shall act as
attorney-in-fact and agent for the tax matters person of the Lower-Tier REMIC
and the Upper-Tier REMIC, and each Holder of a Percentage Interest in the Class
R or Class LR Certificates, by acceptance hereof, is deemed to have consented to
the Trustee's appointment in such capacity and agrees to execute any documents
required to give effect thereto, and any fees and expenses incurred by the
Trustee in connection with any audit or administrative or judicial proceeding
shall be paid by the Trust Fund.
The Trustee shall not intentionally take any action or intentionally
omit to take any action if, in taking or omitting to take such action, the
Trustee knows that such action or omission (as the case may be) would cause the
termination of the REMIC status of the Lower-Tier REMIC or the Upper-Tier REMIC
or the imposition of tax on the Lower-Tier REMIC or the Upper-Tier REMIC (other
than a tax on income expressly permitted to be received by the terms of this
Agreement). Notwithstanding any provision of this paragraph to the contrary, the
Trustee shall not be required to take any action that the Trustee in good faith
believes to be inconsistent with any other provision of this Agreement, nor
shall the Trustee be deemed in violation of this paragraph if it takes any
action expressly required or authorized by any other provision of this
Agreement, and the Trustee shall have no responsibility or liability with
respect to any act or omission of the Depositor, the Master Servicer or the
Special Servicer which does not enable the Trustee to comply with any of clauses
(i) through (vi) of the first paragraph of this Section 4.04(a) or which results
in any action contemplated by clauses (i) or (ii) of the next succeeding
sentence. In this regard the Trustee shall (i) exercise reasonable care not to
allow the occurrence of any "prohibited transactions" within the meaning of Code
Section 860F(a), unless the party seeking such action shall have delivered to
the Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Lower-Tier
REMIC or the Upper-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (c) cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust Fund to receive any
contributions, or any income from the performance of services or from assets not
permitted under the REMIC Provisions to be held by a REMIC (provided, however,
that the receipt of any income expressly permitted or contemplated by the terms
of this Agreement shall not be deemed to violate this clause). Neither the
Master Servicer, the Special Servicer nor the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences or the following sentence) for any failure by the Trustee to
comply with the provisions of this Section 4.04. The Depositor, the Master
Servicer and the Special Servicer shall cooperate in a timely manner with the
Trustee in supplying any information within the Depositor's, the Master
Servicer's or the Special Servicer's control (other than any confidential
information) that is reasonably necessary to enable the Trustee to perform its
duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for
calculating the original yield to maturity and original issue discount with
respect to the Regular Certificates: (i) each Mortgage Loan will pay
principal and interest in accordance with its terms and scheduled payments
will be timely received on their Due Dates, provided that the Mortgage Loans
will prepay in accordance with the Prepayment Assumption; (ii) none of the
Sole Certificateholder, the Master Servicer, the Special Servicer and the
Certificateholder owning a majority of the Percentage Interests in the
Controlling Class will exercise the right described in Section 9.01 of this
Agreement to cause early termination of the Trust Fund; and (iii) no Mortgage
Loan is repurchased by a Mortgage Loan Seller pursuant to Article II hereof.
Section 4.05 Imposition of Tax on the Trust Fund. In the event that
any tax, including interest, penalties or assessments, additional amounts or
additions to tax, is imposed on the Upper-Tier REMIC or the Lower-Tier REMIC,
such tax shall be charged against amounts otherwise distributable to the Holders
of the Certificates; provided, that any taxes imposed on any net income from
foreclosure property pursuant to Code Section 860G(d) or any similar tax imposed
by a state or local jurisdiction shall instead be treated as an expense of the
related Serviced REO Property in determining Net REO Proceeds with respect to
the Serviced REO Property (and until such taxes are paid, the Special Servicer
from time to time shall withdraw from amounts in the REO Account (and, in the
case of any Serviced Whole Loans, from amounts in the Serviced Whole Loan REO
Account) allocable to the Mortgage Loans and transfer to the Trustee amounts
reasonably determined by the Trustee to be necessary to pay such taxes, which
the Trustee shall maintain in a separate, non-interest-bearing account, and the
Trustee shall send to the Special Servicer for deposit in the REO Account (or,
if applicable, the Serviced Whole Loan REO Account) the excess determined by the
Trustee from time to time of the amount in such account over the amount
necessary to pay such taxes) and shall be paid therefrom; provided that any such
tax imposed on net income from foreclosure property that exceeds the amount in
any such reserve shall be retained from Available Funds as provided in Section
3.06(b)(xiii) or, in the case of any Serviced Whole Loans, in Section
3.06(c)(xiii), and the next sentence. Except as provided in the preceding
sentence, the Trustee is hereby authorized to and shall retain or cause to be
retained from Available Funds sufficient funds to pay or provide for the payment
of, and to actually pay, such tax as is legally owed by the applicable REMIC
(but such authorization shall not prevent the Trustee from contesting, at the
expense of the Trust Fund, or in the case of a Serviced Whole Loan with a
Serviced Pari Passu Companion Loan, on a pro rata basis as between the related
Mortgage Loan and any related Serviced Pari Passu Companion Loan (based on their
respective outstanding principal balance)) any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The Trustee is hereby authorized to and shall
segregate or cause to be segregated, into a separate non-interest bearing
account, (i) the net income allocable to the Mortgage Loans from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(d) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Collection Account, the Lower-Tier Distribution Account or the Upper-Tier
Distribution Account, as the case may be). To the extent that any such tax is
paid to the IRS, the Trustee shall retain an equal amount from future amounts
otherwise distributable to the Holders of the Class R or the Class LR
Certificates, as the case may be, and shall distribute such retained amounts to
the Holders of Regular Certificates, or the Trustee as Holder of the Lower-Tier
Regular Interests, until they are fully reimbursed and then to the Holders of
the Class R Certificates or the Class LR Certificates, as applicable. Neither
the Master Servicer, the Special Servicer nor the Trustee shall be responsible
for any taxes imposed on the Lower-Tier REMIC or the Upper-Tier REMIC except to
the extent such tax is attributable to a breach of a representation or warranty
or the gross negligence or willful misconduct of the Master Servicer, the
Special Servicer or the Trustee or an act or omission of the Master Servicer,
the Special Servicer or the Trustee in contravention of this Agreement,
provided, further, that such breach, act or omission could result in liability
under Section 6.03, in the case of the Master Servicer or Section 4.04 or 8.01,
in the case of the Trustee. Notwithstanding anything in this Agreement to the
contrary, in each such case, the Master Servicer or the Special Servicer shall
not be responsible for Trustee's breaches, acts or omissions, and the Trustee
shall not be responsible for the breaches, acts or omissions of the Master
Servicer or the Special Servicer.
Section 4.06 Remittances. (a) "Applicable Monthly Payment" shall
mean, for any Mortgage Loan with respect to any month, (A) if such Mortgage Loan
is delinquent as to its Balloon Payment (including any such Mortgage Loan as to
which the related Mortgaged Property has become an REO Property), the related
Assumed Scheduled Payment, and (B) if such Mortgage Loan is not described in
clause (A) above (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the Monthly Payment (after
giving effect to any modification other than as described in (A) above);
provided, however, that for purposes of calculating the amount of any P&I
Advance required to be made by the Master Servicer or the Trustee,
notwithstanding the amount of such Applicable Monthly Payment, interest shall be
calculated at the Net Mortgage Pass-Through Rate (plus the Trustee Fee Rate).
The Applicable Monthly Payment shall be reduced, for purposes of P&I Advances,
by any modifications pursuant to Section 3.32 or otherwise and by any reductions
by a bankruptcy court pursuant to a plan of reorganization or pursuant to any of
its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each
Distribution Date, the Master Servicer shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to Prepayment Premiums and Yield Maintenance
Charges, and for deposit in accordance with Section 3.05(j) Excess
Liquidation Proceeds, in each case received by the Master Servicer in its
Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the aggregate of the Available Funds for such
Distribution Date; and
(iii) remit to the Trustee for deposit in the Grantor Trust
Distribution Account an amount equal to the Excess Interest for the
benefit of the Class S Certificateholders received by the Master Servicer
in the Collection Period preceding such Distribution Date.
Section 4.07 P&I Advances. (a) On or before 1:00 p.m. (New York City
time) on each Servicer Remittance Date, the Master Servicer shall in the case of
all Mortgage Loans either (i) remit to the Trustee for deposit into the
Lower-Tier Distribution Account from its own funds an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Collection Account or the
applicable Serviced Whole Loan Collection Account, as applicable, for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to make P&I Advances; provided that such amounts in the applicable
Serviced Whole Loan Collection Account shall only be applied up to the related
Mortgage Loan's pro rata share of the amounts held therein on such date or (iii)
make P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made by the Master Servicer. Any amounts held
in the Collection Account or any Serviced Whole Loan Collection Account, as
applicable, for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection Account or the applicable Serviced
Whole Loan Collection Account, as applicable, on or before the next succeeding
P&I Advance Determination Date (to the extent not previously replaced through
either (x) the deposit of Late Collections of the delinquent principal and/or
interest in respect of which such P&I Advances were made or (y) the deposit of
Monthly Payments collected prior to the expiration of any applicable grace
period that ends after the P&I Advance Determination Date in respect of which
such P&I Advances were made). The Master Servicer shall notify the Trustee of
(i) the aggregate amount of P&I Advances for a Distribution Date and (ii) the
amount of any Nonrecoverable P&I Advances for such Distribution Date, on or
before the P&I Advance Determination Date. If the Master Servicer fails to make
a required P&I Advance by 1:00 p.m. (New York City time) on any Servicer
Remittance Date, then the Trustee shall make such P&I Advance pursuant to
Section 7.06 by 12:00 noon (New York City time) on the related Distribution
Date, in each case unless the Master Servicer shall have cured such failure (and
provided written notice of such cure to the Trustee) by 11:00 a.m. (New York
City time) on such Distribution Date or the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. Neither the Master Servicer
nor the Trustee shall be required to make P&I Advances on any Companion Loan.
(b) Subject to Sections 4.07(c) and 4.07(e) below, the aggregate
amount of P&I Advances to be made by the Master Servicer with respect to any
Distribution Date shall equal the aggregate of: (i) all Monthly Payments with
respect to the Mortgage Loans (in each case, net of related Servicing Fees
and, in the case of the Desert Passage Loan, net of the servicing fee rate
pursuant to the BACM 2006-1 Pooling and Servicing Agreement) other than
Balloon Payments, that were due during the related Collection Period and
delinquent (or unpaid, pending the expiration of any applicable grace period
with respect to any Mortgage Loan having a grace period extending past the
P&I Advance Determination Date) as of the close of business on the P&I
Advance Determination Date (or not advanced by the Master Servicer or any
sub-servicer on behalf of the Master Servicer) and (ii) with respect to each
Mortgage Loan that the Master Servicer is servicing and as to which the
related Balloon Payment was due during or prior to the related Collection
Period and was delinquent (including any applicable grace period) as of the
end of the related Collection Period (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. Subject to subsection (c) below, the obligation
of the Master Servicer to make such P&I Advances is mandatory, and with
respect to any applicable Mortgage Loan or REO Loan, shall continue until the
Distribution Date on which Liquidation Proceeds or REO Proceeds, if any, are
to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required hereunder if the Master Servicer, the Special
Servicer or the Trustee, as applicable, determines that such P&I Advance
would, if made, constitute a Nonrecoverable P&I Advance. In addition, the
Master Servicer shall not make any P&I Advance to the extent that it has
received written notice that the Special Servicer has determined that such
P&I Advance would, if made, constitute a Nonrecoverable P&I Advance. In
making such recoverability determination, the Master Servicer, the Special
Servicer and the Trustee, as applicable, will be entitled to (i) give due
regard to the existence of any Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other Mortgage Loans, the recovery of
which, at the time of such consideration, is being deferred or delayed by the
Master Servicer or the Trustee, as applicable, in light of the fact that
proceeds on the related Mortgage Loan are a source of recovery not only for
the P&I Advance under consideration, but also as a potential source of
recovery of such Nonrecoverable Advance or Workout-Delayed Reimbursement
Amount which is being or may be deferred or delayed and (ii) consider (among
other things) the obligations of the Borrower under the terms of the related
Mortgage Loan (or the related Serviced Whole Loan, as applicable) as it may
have been modified, to consider (among other things) the related Mortgaged
Properties in their "as is" or then current conditions and occupancies, as
modified by such party's assumptions (consistent with the applicable
Servicing Standard in the case of the Master Servicer and the Special
Servicer) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (consistent
with the applicable Servicing Standard in the case of the Master Servicer and
the Special Servicer) (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior P&I
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were xxxxxxxxxxxx X&X Advances. Neither the Master
Servicer nor Trustee shall make any P&I Advances with respect to delinquent
amounts due on any Companion Loan. If an Appraisal of the related Mortgaged
Property shall not have been obtained within the prior 12 month period (and the
Master Servicer and the Trustee shall each request any such appraisal from the
Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if
such an Appraisal shall have been obtained but as a result of unforeseen
occurrences, such Appraisal does not, in the good faith determination of the
Master Servicer, the Special Servicer or the Trustee, reflect current market
conditions, and the Master Servicer or the Trustee, as applicable, and the
Special Servicer cannot agree on the appropriate downward adjustment to such
Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, may, subject to its reasonable and good faith determination that such
Appraisal will demonstrate the nonrecoverability of the related Advance, obtain
an Appraisal for such purpose at the expense of the Trust Fund (and, in the case
of any Serviced Whole Loan, first of the related Serviced B Loan, if any,
second, of the related Mortgage Loan, or in the case of a Serviced Whole Loan
with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based
on their respective outstanding principal balance) and third, to the extent such
expense remains unpaid, of the Trust Fund).
Any such determination by the Master Servicer or the Trustee that it
has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance shall be evidenced by a
certificate of a Servicing Officer delivered to the Trustee, the Special
Servicer and the Depositor and, in the case of the Trustee, by a certificate of
a Responsible Officer of the Trustee, delivered to the Depositor, the Master
Servicer and the Special Servicer, which in each case sets forth such
nonrecoverability determination and the considerations of the Master Servicer or
the Trustee, as applicable, forming the basis of such determination (such
certificate accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and other
information used by the Master Servicer or the Trustee, as applicable, to make
such determination, together with any existing Appraisal or any Updated
Appraisal); provided, however, that the Special Servicer may, at its option,
make a determination in accordance with the Servicing Standard, that any P&I
Advance previously made or proposed to be made is nonrecoverable and shall
deliver to the Master Servicer and the Trustee notice of such determination,
together with a certificate of a Servicing Officer and the supporting
information described above. Any such determination shall be conclusive and
binding on the Master Servicer, the Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a P&I Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust Fund (and, in the case of any
Serviced Whole Loan, prior to at the expense of the Trust Fund, first of the
related Serviced B Loan, if any, and second, to the extent such expense remains
unpaid, of the related Mortgage Loan, or in the case of a Serviced Whole Loan
with a Serviced Pari Passu Companion Loan, on a pro rata basis as between the
related Mortgage Loan and any related Serviced Pari Passu Companion Loan (based
on their respective outstanding principal balance)), any analysis, Appraisals or
market value estimates or other information for such purposes. Absent bad faith,
any such determination as to the recoverability of any P&I Advance shall be
conclusive and binding on the Certificateholders.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a P&I Advance, if made, would be a Nonrecoverable
P&I Advance and (ii) the Master Servicer will be entitled to rely conclusively
on any nonrecoverability determination of the Special Servicer. The Trustee, in
determining whether or not a P&I Advance previously made is, or a proposed P&I
Advance, if made, would be, a Nonrecoverable P&I Advance shall be subject to the
standards applicable to the Master Servicer hereunder. The Special Servicer
shall promptly furnish the Master Servicer and the Trustee with any information
in its possession regarding the Specially Serviced Loans and REO Properties as
each such party may reasonably request for purposes of making recoverability
determinations.
(d) In connection with the recovery of any P&I Advance out of the
Collection Account pursuant to Section 3.06(b) or any Serviced Whole Loan
Collection Account pursuant to Section 3.06(c), the Master Servicer shall be
entitled to pay itself or the Trustee, as the case may be (in reverse of such
order with respect to any Mortgage Loan or REO Property), out of any amounts
then on deposit in the Collection Account or the applicable Serviced Whole
Loan Collection Account (to the extent amounts therein relate to the Mortgage
Loans, taking into account the related Co-Lender Agreement), as applicable,
interest at the Advance Rate in effect from time to time, accrued on the
amount of such P&I Advance from the later of the date made or the expiration
of any applicable grace period to but not including the date of reimbursement
(or if such P&I Advance was made prior to the end of any grace period
applicable to the subject delinquent Monthly Payment, for so long as such P&I
Advance is outstanding following the end of such grace period). The Master
Servicer shall reimburse itself or the Trustee, as the case may be, for any
outstanding P&I Advance as soon as practicably possible after funds available
for such purpose are deposited in the Collection Account or the applicable
Serviced Whole Loan Collection Account.
Notwithstanding the foregoing, (i) neither the Master Servicer nor
the Trustee shall make an advance for Excess Interest, Yield Maintenance Charges
or Penalty Charges and (ii) the amount of any P&I Advance with respect to a
Mortgage Loan as to which there has been an Appraisal Reduction will be an
amount equal to the product of (i) the amount required to be advanced without
giving effect to this proviso and (ii) a fraction, the numerator of which is the
Stated Principal Balance of such Mortgage Loan as of the immediately preceding
Determination Date less any Appraisal Reduction Amount applicable to such
Mortgage Loan and the denominator of which is the Stated Principal Balance of
such Mortgage Loan as of such Determination Date. All P&I Advances for any
Mortgage Loans that have been modified shall be calculated on the basis of their
terms as modified.
The portion of any Insurance Proceeds and Net Liquidation Proceeds
in respect of a Mortgage Loan or any REO Loan allocable to principal shall equal
the total amount of such proceeds minus (i) any portion thereof payable to the
Master Servicer, the Special Servicer or the Trustee pursuant to this Agreement
and (ii) a portion thereof equal to the interest component of the Monthly
Payment(s), as accrued at the related Net Mortgage Rate from the date as to
which interest was last paid by the Borrower up to but not including the Due
Date in the Collection Period in which such proceeds are received; provided,
however, in the event that the interest portion(s) of one or more P&I Advances
with respect of such Mortgage Loan or REO Loan, as applicable, were reduced as a
result of an Appraisal Reduction Event, the amount of the Net Liquidation
Proceeds to be applied to interest shall be reduced by the aggregate amount of
such reductions and the portion of such Net Liquidation Proceeds to be applied
to principal shall be increased by such amount, and if the amount of the Net
Liquidation Proceeds to be applied to principal has been applied to pay the
principal of such Mortgage Loan or REO Loan in full, any remaining Net
Liquidation Proceeds shall then be applied to pay any remaining accrued and
unpaid interest of such Mortgage Loan or REO Loan.
(e) With respect to the Non-Serviced Mortgage Loan, the Master
Servicer shall make its determination that it has made a P&I Advance on such
Mortgage Loan that is a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance with respect
to such Mortgage Loan in accordance with Section 4.07(a) independently of any
determination made by the Other Servicer (or any master servicer with respect
to a commercial mortgage securitization holding another pari passu loan
related to the Non-Serviced Mortgage Loan, if any) under the Other Pooling
and Servicing Agreement (or any pooling and servicing agreement with respect
to a commercial mortgage securitization holding another pari passu loan
related to the Non-Serviced Mortgage Loan, if any). If the Master Servicer
determines that a proposed P&I Advance with respect to the Non-Serviced
Mortgage Loan, if made, or any outstanding P&I Advance with respect to the
Non-Serviced Mortgage Loan previously made, would be, or is, as applicable, a
Nonrecoverable Advance, the Master Servicer shall provide the Other Servicer
(and any master servicer with respect to a commercial mortgage securitization
holding another pari passu loan related to the Non-Serviced Mortgage Loan, if
any) written notice of such determination within one Business Day of the date
of such determination. If the Master Servicer receives written notice from
the Other Servicer (or any master servicer with respect to a commercial
mortgage securitization holding another pari passu loan related to the
Non-Serviced Mortgage Loan, if any) that it has determined, with respect to
the related pari passu loan, that any proposed advance of principal and/or
interest with respect to the related pari passu loan would be, or any
outstanding advance of principal and interest is, a nonrecoverable advance of
principal and/or interest, then such determination shall be binding on the
Certificateholders and none of the Master Servicer or the Trustee shall make
any additional P&I Advances with respect to the Non-Serviced Mortgage Loan
unless the Master Servicer has consulted with the other related master
servicers and they agree that circumstances with respect to the Non-Serviced
Mortgage Loan, as applicable, have changed such that a proposed future P&I
Advance in respect of the Non-Serviced Mortgage Loan would be recoverable;
provided, however, that the determination of the Other Servicer or the master
servicer with respect to the commercial mortgage securitizations that hold a
related pari passu loan, if any, shall not be binding on the
Certificateholders in the event that the master servicer that made such
determination is not approved as a master servicer by each of the Rating
Agencies and the Master Servicer or the Trustee, as applicable, shall make
its own determination of recoverability, in the event that the master
servicer that made such determination is not approved as a master servicer by
each of the Rating Agencies. Notwithstanding the foregoing, the Master
Servicer shall continue to have the discretion provided in this Agreement to
determine that any future P&I Advance or outstanding P&I Advance would be, or
is, as applicable, a Nonrecoverable P&I Advance. Once such a determination is
made by the Master Servicer or the Master Servicer receives written notice of
such determination by any of the Other Servicers or other master servicers,
neither the Master Servicer nor the Trustee shall make any additional P&I
Advances with respect to the Non-Serviced Mortgage Loan until the Master
Servicer has followed the process set forth in this paragraph.
In the event that the Master Servicer receives notice from any of
S&P or Fitch that it is no longer approved as a master servicer for commercial
mortgage securitizations, it shall promptly notify the Trustee, any Other
Trustee, any Other Servicer and any other trustee or master servicer with
respect to each commercial mortgage securitization that holds a related pari
passu loan, if any.
(f) With respect to the Serviced Mortgage Loans that have a
Serviced Pari Passu Companion Loan, the Master Servicer shall make its
determination that it has made a P&I Advance on any such Mortgage Loan that
is a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance with respect to such Mortgage
Loan in accordance with Section 4.07(a) independently of any determination
made in respect of the related Serviced Pari Passu Companion Loan, by the
master servicer under the related Serviced Companion Loan Securitization
Agreement. If the Master Servicer determines that a proposed P&I Advance with
respect to a Serviced Mortgage Loan if made, or any outstanding P&I Advance
with respect to such Mortgage Loan previously made, would be, or is, as
applicable, a Nonrecoverable Advance or if the Master Servicer subsequently
determines that a proposed Property Advance would be a Nonrecoverable Advance
or an outstanding Property Advance is or would be a Nonrecoverable Advance,
the Master Servicer shall provide the master servicer under each Serviced
Companion Loan Securitization Agreement related to a Serviced Pari Passu
Companion Loan written notice of such determination within one Business Day
of the date of such determination. If the Master Servicer receives written
notice from any master servicer under any such Serviced Companion Loan
Securitization Agreement that such master servicer has determined, with
respect to the related Serviced Pari Passu Companion Loan, that any proposed
advance of principal and interest with respect to such loan would be, or any
outstanding advance of principal and interest is, a nonrecoverable advance of
principal and interest, then such determination shall be binding on the
Certificateholders and none of the Master Servicer or the Trustee shall make
any additional P&I Advances with respect to related Mortgage Loan unless the
Master Servicer has consulted with the other master servicers and they agree
that circumstances with respect to such Whole Loan have changed such that a
proposed future P&I Advance in respect of the related Serviced Mortgage Loan
would be recoverable; provided, however, that the determination of the master
servicer under each applicable Serviced Companion Loan Securitization
Agreement shall not be binding on the Certificateholders, and the Master
Servicer or the Trustee, as applicable, shall make its own determination of
recoverability, in the event that the master servicer that made such
determination is not approved as a master servicer by each of S&P and Fitch.
Notwithstanding the foregoing, the Master Servicer shall continue to have the
discretion (including if the master servicer under a Serviced Companion Loan
Securitization Agreement determines that any advance of principal and/or
interest with respect to a Serviced Pari Passu Companion Loan would be
recoverable) provided in this Agreement to determine that any future P&I
Advance or outstanding P&I Advance would be, or is, as applicable, a
Nonrecoverable P&I Advance. Once such a determination is made by the Master
Servicer or the Master Servicer receives written notice of such determination
by any of the other master servicers with respect to Serviced Pari Passu
Companion Loan, neither the Master Servicer nor the Trustee shall make any
additional P&I Advances with respect to such Serviced Mortgage Loan, until
the Master Servicer has followed the process set forth in this paragraph.
In the event that the Master Servicer obtains knowledge that it is
no longer approved as a master servicer for commercial mortgage securitizations
for either S&P or Fitch, it shall promptly notify the master servicer under each
Serviced Companion Loan Securitization Agreement.
(g) The Master Servicer or the Trustee, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent
permitted pursuant to Section 3.06 of this Agreement together with any
related Advance Interest Amount in respect of such P&I Advances to the extent
permitted pursuant to Section 3.06 and the Master Servicer and the Special
Servicer each hereby covenants and agrees to promptly seek and effect the
reimbursement of such Advances from the related Borrowers to the extent
permitted by applicable law and the related Mortgage Loan and this Agreement.
Section 4.08 Grantor Trust Reporting. The parties intend that the
portions of the Trust Fund consisting of Excess Interest and proceeds thereof in
the Grantor Trust Distribution Account shall be treated as a "grantor trust"
under the Code, and the provisions thereof shall be interpreted consistently
with this intention. In furtherance of such intention, the Bond Administrator
shall file or cause to be filed with the IRS Form 1041 or such other form as may
be applicable and shall furnish or cause to be furnished to the Holders of the
Class S Certificates their allocable share of income with respect to Excess
Interest as such amounts are received. In addition, the Trustee shall maintain
adequate books and records to account for the separate entitlements of the
Lower-Tier REMIC and the Grantor Trust.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. (a) The Certificates consist of the
Class A-1 Certificates, the Class A-2 Certificates, the Class A-3 Certificates,
the Class A-AB Certificates, the Class A-4 Certificates, the Class A-1A
Certificates, the Class X Certificates, the Class A-M Certificates, the Class
A-J Certificates, the Class B Certificates, the Class C Certificates, the Class
D Certificates, the Class E Certificates, the Class F Certificates, the Class G
Certificates, the Class H Certificates, the Class J Certificates, the Class K
Certificates, the Class L Certificates, the Class M Certificates, the Class N
Certificates, the Class O Certificates, the Class P Certificates, the Class S
Certificates, the Class R Certificates and the Class LR Certificates.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P, Class S, Class R and Class LR Certificates will be substantially in the forms
annexed hereto as Exhibits A-1 through A-32, as set forth in the Table of
Exhibits hereto. The Certificates of each Class will be issuable in registered
form only, in minimum denominations of authorized Certificate Balance or
Notional Balance, as applicable, as described in the succeeding table, and
multiples of $l in excess thereof (or such lesser amount if the Certificate
Balance or Notional Balance, as applicable, is not a multiple of $1). With
respect to any Certificate or any beneficial interest in a Certificate, the
"Denomination" thereof shall be (i) the amount (A) set forth on the face thereof
or (B) in the case of any Global Certificate, set forth on a schedule attached
thereto or, in the case of any beneficial interest in a Global Certificate, the
amount set forth on the books and records of the related Depository Participant
or Indirect Participant, as applicable, (ii) expressed in terms of Certificate
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Minimum Aggregate Denomination of
Class Denomination all Certificates of Class
----- ------------ -------------------------
A-1.............. $10,000 $90,000,000
A-2.............. $10,000 $107,966,000
A-3.............. $10,000 $40,098,000
A-AB............. $10,000 $98,824,000
A-4.............. $10,000 $1,052,664,000
A-1A............. $10,000 $323,552,000
X................ $1,000,000 $2,447,292,352
A-M.............. $10,000 $244,729,000
A-J.............. $10,000 $189,666,000
B................ $25,000 $52,005,000
C................ $25,000 $24,472,000
D................ $25,000 $36,710,000
E................ $25,000 $21,414,000
F................ $25,000 $30,591,000
G................ $25,000 $24,473,000
H................ $25,000 $30,591,000
J................ $25,000 $12,236,000
K................ $25,000 $6,119,000
L................ $25,000 $9,177,000
M................ $25,000 $3,059,000
N................ $25,000 $6,118,000
O................ $25,000 $9,178,000
P................ $25,000 $33,650,352
Each Certificate will share ratably in all rights of the related
Class. The Class S, Class R and Class LR Certificates will each be issuable in
one or more registered, definitive physical certificates in minimum
denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the
Trust Fund, the Paying Agent and the Trustee may for all purposes (including
the making of payments due on the Global Certificates and the giving of
notice to Holders thereof) deal with the Depository as the authorized
representative of the Beneficial Owners with respect to the Global
Certificates for the purposes of exercising the rights of Certificateholders
hereunder; provided, however, that, for purposes of providing information
pursuant to Section 3.22 or transmitting communications pursuant to Section
5.05(a), to the extent that the Depositor has provided the Trustee with the
names of Beneficial Owners (even if such Certificateholders hold their
Certificates through the Depository) the Trustee shall provide such
information to such Beneficial Owners directly. The rights of Beneficial
Owners with respect to Global Certificates shall be limited to those
established by law and agreements between such Certificateholders and the
Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled
to physical certificates for the Global Certificates as to which they are the
Beneficial Owners. Requests and directions from, and votes of, the Depository
as Holder of the Global Certificates shall not be deemed inconsistent if they
are made with respect to different Beneficial Owners. Subject to the
restrictions on transfer set forth in this Section 5.02 and Applicable
Procedures, the holder of a beneficial interest in a Private Global
Certificate may request that the Trustee cause the Depository (or any Agent
Member) to notify the Certificate Registrar and the Certificate Custodian in
writing of a request for transfer or exchange of such beneficial interest for
an Individual Certificate or Certificates. Upon receipt of such a request and
payment by the related Beneficial Owner of any attendant expenses, the
Depositor shall cause the issuance and delivery of such Individual
Certificates. The Certificate Registrar may establish a reasonable record
date in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Certificate Registrar, no Global
Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted
or otherwise reproduced thereon such legend or legends, not inconsistent with
the provisions of this Agreement, as may be required to comply with any law
or with rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the
Certificate Custodian, and in either case shall be registered in the name of
Cede & Co. and (ii) shall bear a legend substantially to the following
effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Certificate Registrar for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest
herein."
The Global Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Trustee and the
Depository through Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best
interests of the Beneficial Owner or Owners of such Global Certificate, the
Trustee shall notify the affected Beneficial Owner or Owners through the
Depository of the occurrence of such event and the availability of Individual
Certificates to such Beneficial Owners requesting them. Upon surrender to the
Trustee of Global Certificates by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Trustee
shall issue the Individual Certificates. Neither the Trustee, the Certificate
Registrar, the Master Servicer, the Special Servicer nor the Depositor shall
be liable for any actions taken by the Depository or its nominee, including,
without limitation, any delay in delivery of such instructions. Upon the
issuance of Individual Certificates, the Trustee, the Certificate Registrar
and the Master Servicer shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Master Servicer or Special
Servicer have instituted or have been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under
the Certificates, and the Trustee, the Master Servicer or the Special
Servicer have been advised by counsel that in connection with such proceeding
it is necessary or appropriate for the Trustee, the Master Servicer or the
Special Servicer to obtain possession of the Certificates, the Trustee, the
Master Servicer or the Special Servicer may in their sole discretion
determine that the Certificates represented by the Global Certificates shall
no longer be represented by such Global Certificates. In such event, the
Trustee or the Authenticating Agent will execute and authenticate and the
Certificate Registrar will deliver, in exchange for such Global Certificates,
Individual Certificates (and if the Trustee or the Certificate Custodian has
in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate
Denomination of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d)
of the Exchange Act, the Trustee shall make available to each Holder of a
Class X, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P, Class S, Class R or Class LR
Certificate, upon request of such a Holder, information, to the extent such
information is in its possession, substantially equivalent in scope to the
information currently filed by the Master Servicer with the Commission
pursuant to the Exchange Act, plus such additional information required to be
provided for securities qualifying for resales under Rule 144A under the Act,
all of which information referred to in this paragraph shall be provided on a
timely basis to the Trustee by the Master Servicer.
For so long as the Class R or Class LR Certificates remain
outstanding, none of the Depositor, the Trustee or the Certificate Registrar
shall take any action which would cause the Trust Fund to fail to be subject to
Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar
form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee or Authenticating Agent by an authorized
officer or signatory. Certificates bearing the signature of an individual who
was at any time the proper officer or signatory of the Trustee or
Authenticating Agent shall bind the Trustee or Authenticating Agent,
notwithstanding that such individual has ceased to hold such office or
position prior to the delivery of such Certificates or did not hold such
office or position at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication in
the form set forth in Exhibits A-1 through A-32 executed by the
Authenticating Agent by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
(i) If, in connection with any Distribution Date, the Trustee
shall have reported the amount of an anticipated distribution to the
Depository based on the expected receipt of any monthly payment based on
information set forth in any report of the Master Servicer or the Special
Servicer, or any other monthly payment, Balloon Payment or prepayment
expected to be paid on the last two Business Days preceding such Distribution
Date, and the related Borrower fails to make such payments at such time, the
Trustee shall use commercially reasonable efforts to cause the Depository to
make the revised distribution on a timely basis on such Distribution Date.
Any out-of-pocket costs incurred by the Trustee as a consequence of a
Borrower failing to make such payments shall be reimbursable to the Trustee
as an expense of the Trust Fund.
Section 5.02 Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at its offices books (the
"Certificate Register") for the registration, transfer and exchange of
Certificates (the Trustee, in such capacity, being the "Certificate Registrar").
The Depositor, the Master Servicer and the Special Servicer shall have the right
to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate Register. The names
and addresses of all Certificateholders and the names and addresses of the
transferees of any Certificates shall be registered in the Certificate Register;
provided, however, in no event shall the Certificate Registrar be required to
maintain in the Certificate Register the names of the individual Participants
holding beneficial interests in the Trust Fund through the Depository. The
Person in whose name any Certificate is so registered shall be deemed and
treated as the sole owner and Holder thereof for all purposes of this Agreement
and the Depositor, Certificate Registrar, the Master Servicer, Special Servicer,
the Trustee, the Trustee, any Paying Agent and any agent of any of them shall
not be affected by any notice or knowledge to the contrary. An Individual
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at its offices together with an
assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the requirements of Sections 5.01(h) and 5.02(c), (d),
(e), (f), (g), (h) and (i). Upon request of the Trustee, the Certificate
Registrar shall provide the Trustee with the names, addresses and Percentage
Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee shall execute and the Authenticating Agent
shall duly authenticate in the name of the designated transferee or
transferees, one or more new Certificates in Denominations of a like
aggregate Denomination as the Individual Certificate being surrendered. Such
Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of
transfer shall be canceled and subsequently destroyed by the Certificate
Registrar. Each new Certificate issued pursuant to this Section 5.02 shall be
registered in the name of any Person as the transferring Holder may request,
subject to the provisions of Sections 5.01(h) and 5.02(c), (d), (e), (f),
(g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(h) and 5.02(d),
(e), (f), (g), (h) and (i) and the rules of the Depository, the exchange,
transfer and registration of transfer of Individual Certificates or
beneficial interests in the Private Global Certificates shall be subject to
the following restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class S, Class R or Class LR
Certificates to a transferee that takes delivery in the form of an
Individual Certificate:
(A) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made by
a transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of
Exhibit D-1 hereto (an "Investment Representation Letter"), to the
effect that the transfer is being made to a Qualified Institutional
Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of
an Individual Certificate pursuant to Regulation S after the
expiration of the Restricted Period if (1) the transferor has
provided the Certificate Registrar with a Regulation S Transfer
Certificate substantially in the form of Exhibit G hereto (a
"Regulation S Transfer Certificate"), and (2) the transferee
furnishes to the Certificate Registrar an Investment Representation
Letter; or
(C) The Certificate Registrar shall register the transfer of
an Individual Certificate if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made
to an Institutional Accredited Investor or to an Affiliated Person
in accordance with an applicable exemption under the Act, and (2) an
opinion of counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the transfer
of an Individual Certificate only if prior to the transfer the transferee
furnishes to the Certificate Registrar a written undertaking by the
transferor to reimburse the Trust Fund for any costs incurred by it in
connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions
or other information (at the transferor's expense) as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long as a Private
Global Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such Beneficial Owner may, in
addition to complying with all applicable rules and procedures of
the Depository and Clearstream or Euroclear applicable to transfers
by their respective participants (the "Applicable Procedures"),
transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in such Regulation S Global
Certificate only upon compliance with the provisions of this Section
5.02(c)(ii)(A). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount equal
to the Denomination of the beneficial interest in the Rule 144A
Global Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member and the Euroclear or
Clearstream account, as the case may be, to be credited with, and
the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit H hereto
given by the Beneficial Owner of such interest, the Certificate
Registrar shall instruct the Depository or the Certificate
Custodian, as applicable, to reduce the Denomination of the Rule
144A Global Certificate by the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be so transferred
and, concurrently with such reduction, to increase the Denomination
of the Regulation S Global Certificate by the Denomination of the
beneficial interest in the Rule 144A Global Certificate to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions (who shall be an Agent
Member acting for or on behalf of Euroclear or Clearstream, or both,
as the ease may be) a beneficial interest in the Regulation S Global
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Global Certificate was reduced upon
such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the
transfer of such beneficial interest for an equivalent beneficial
interest in such Regulation S Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(B). Upon
receipt by the Certificate Registrar at the Corporate Trust Office
of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar
to credit or cause to be credited to another specified Agent
Member's account a beneficial interest in the Regulation S Global
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be transferred, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member
and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may
be, to be credited with, and the account of the Agent Member to be
debited for, such beneficial interest, and (3) a certificate in the
form of Exhibit I hereto given by the Beneficial Owner of such
interest, the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to reduce the Denomination
of the Rule 144A Global Certificate by the aggregate Denomination of
the beneficial interest in the Rule 144A Global Certificate to be so
transferred and, concurrently with such reduction, to increase the
Denomination of the Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A Global
Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions
a beneficial interest in the Regulation S Global Certificate having
a Denomination equal to the amount by which the Denomination of the
Rule 144A Global Certificate was reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a Regulation
S Global Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Global Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in the related Rule 144A Global Certificate, such Beneficial Owner
may, in addition to complying with all Applicable Procedures,
transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in such Rule 144A Global Certificate
only upon compliance with the provisions of this Section
5.02(c)(ii)(C). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Rule 144A Global Certificate in an amount equal to
the Denomination of the beneficial interest in the Regulation S
Global Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with, and
the account of the Agent Member or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as
the case may be, to be debited for, such beneficial interest, and
(3) with respect to a transfer of a beneficial interest in a
Regulation S Global Certificate for a beneficial interest in the
related Rule 144A Global Certificate (i) during the Restricted
Period, a certificate in the form of Exhibit J hereto given by the
holder of such beneficial interest or (ii) after the Restricted
Period, an Investment Representation Letter from the transferee to
the effect that such transferee is a Qualified Institutional Buyer,
the Certificate Registrar shall instruct the Depository or the
Certificate Custodian, as applicable, to reduce the Denomination of
the Regulation S Global Certificate by the aggregate Denomination of
the beneficial interest in the Regulation S Global Certificate to be
transferred, and, concurrently with such reduction, to increase the
Denomination of the Rule 144A Global Certificate by the aggregate
Denomination of the beneficial interest in the Regulation S Global
Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions
a beneficial interest in such Rule 144A Global Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Global Certificate was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate to a
transferee wishing to take delivery in the form of an Individual
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Individual Certificate described in a
legend set forth on the face of such Certificate substantially in the form
of Exhibit F as attached hereto (the "Securities Legend"), and such
transferee agrees that it will transfer such Individual Certificate only
as provided therein and herein. No such transfer shall be made and the
Certificate Registrar shall not register any such transfer unless such
transfer is made in accordance with this Section 5.02(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an Individual Certificate and the
Certificate Registrar shall register such transfer only upon
compliance with the provisions of Section 5.02(c)(i)(c).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only
upon compliance with the provisions of Sections 5.02(c)(i)(A) and
(B), respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an Individual
Certificate pursuant to Subparagraph (B) above shall be made prior
to the expiration of the Restricted Period.
Upon acceptance for exchange or transfer of a beneficial interest in a
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed to
the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global Certificate and made a part
thereof) an appropriate notation evidencing the date of such exchange or
transfer and a decrease in the Denomination of such Private Global
Certificate equal to the Denomination of such Individual Certificate
issued in exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar and the Depositor in accordance
with applicable law, an Individual Certificate issued upon transfer of or
exchange for a beneficial interest in the Private Global Certificate shall
bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Global Certificate or the related Rule 144A Global Certificate, such
transfer may be effected only in accordance with the Applicable Procedures
and this Section 5.02(c)(iv). Upon receipt by the Certificate Registrar at
the Corporate Trust Office of (l) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in such Regulation S Global Certificate or such Rule
144A Global Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred, (3) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member and, in
the case of any transfer pursuant to Regulation S, the Euroclear or
Clearstream account, as the case may be, to be credited with such
beneficial interest, and (4) (x) an Investment Representation Letter from
the transferee and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global Certificate, a Regulation S Transfer
Certificate from the transferor or (y) an Investment Representation Letter
from the transferee to the effect that such transferee is a Qualified
Institutional Buyer if delivery is to be taken in the form of a beneficial
interest in the Rule 144A Global Certificate, the Certificate Registrar
shall cancel such Individual Certificate, execute and deliver a new
Individual Certificate for the Denomination of the Individual Certificate
not so transferred, registered in the name of the Holder or the Holder's
transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the Certificate Custodian, as applicable,
to increase the Denomination of the Regulation S Global Certificate or the
Rule 144A Global Certificate, as the case may be, by the Denomination of
the Individual Certificate to be so transferred, and to credit or cause to
be credited to the account of the Person specified in such instructions
who, in the case of any increase in the Regulation S Global Certificate
during the Restricted Period, shall be an Agent Member acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be, a
corresponding Denomination of the Rule 144A Global Certificate or the
Regulation S Global Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional
Buyer take delivery in the form of a beneficial interest in a Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a beneficial
interest in a Private Global Certificate and an exchange of an Individual
Certificate or Certificates for another Individual Certificate or
Certificates (in each case, whether or not such exchange is made in
anticipation of subsequent transfer, and, in the case of the Private
Global Certificates, so long as the Private Global Certificates remain
outstanding and are held by or on behalf of the Depository), may be made
only in accordance with this Section 5.02 and in accordance with the rules
of the Depository and Applicable Procedures.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the
Certificates so issued shall not bear the Securities Legend. If Certificates
are issued upon the transfer, exchange or replacement of Certificates bearing
the Securities Legend, or if a request is made to remove the Securities
Legend on a Certificate, the Certificates so issued shall bear the Securities
Legend, or the Securities Legend shall not be removed, as the case may be,
unless there is delivered to the Certificate Registrar such satisfactory
evidence, which may include an opinion of counsel (at the expense of the
party requesting the removal of such legend) familiar with United States
securities laws, as may be reasonably required by the Certificate Registrar,
that neither the Securities Legend nor the restrictions on transfers set
forth therein are required to ensure that transfers of any Certificate comply
with the provisions of Rule 144A or Rule 144 under the Act or that such
Certificate is not a "restricted security" within the meaning of Rule 144
under the Act. Upon provision of such satisfactory evidence, the Certificate
Registrar shall execute and deliver a Certificate that does not bear the
Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth
in Section 5.01(i) and in this Section 5.02, the Holder of any Individual
Certificate may transfer or exchange the same in whole or in part (with a
denomination equal to any authorized denomination) by surrendering such
Certificate at the office of the Trustee or at the office of any transfer
agent appointed as provided under this Agreement, together with an instrument
of assignment or transfer (executed by the Holder or its duly authorized
attorney), in the case of transfer, and a written request for exchange, in
the case of exchange. Following a proper request for transfer or exchange,
the Certificate Registrar shall, within five Business Days of such request if
made at such office of the Trustee or within ten Business Days if made at the
office of a transfer agent (other than the Certificate Registrar), execute
and deliver at the office of the Trustee or at the office of such transfer
agent, as the case may be, to the transferee (in the case of transfer) or
Holder (in the case of exchange) or send by first-class mail (at the risk of
the transferee in the case of transfer or Holder in the case of exchange) to
such address as the transferee or Holder, as applicable, may request, an
Individual Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The presentation for transfer or exchange of any Individual
Certificate shall not be valid unless made at the office of the Trustee or at
the office of a transfer agent by the registered Holder in person, or by a
duly authorized attorney-in-fact. The Certificate Registrar may decline to
accept any request for an exchange or registration of transfer of any
Certificate during the period of 15 days preceding any Distribution Date.
(f) An Individual Certificate (other than an Individual
Certificate issued in exchange for a beneficial interest in a Global
Certificate pursuant to Section 5.01) or a beneficial interest in a Private
Global Certificate may only be transferred to Eligible Investors, as
described herein. In the event that a Responsible Officer of the Certificate
Registrar becomes aware that such an Individual Certificate or beneficial
interest in a Private Global Certificate is being held by or for the benefit
of a Person who is not an Eligible Investor, or that such holding is unlawful
under the laws of a relevant jurisdiction, then the Certificate Registrar
shall have the right to void such transfer, if permitted under applicable
law, or to require the investor to sell such Individual Certificate or
beneficial interest in a Private Global Certificate to an Eligible Investor
within fourteen days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited
to transfers of such Global Certificates in whole, but not in part, to
nominees of the Depository or to a successor of the Depository or such
successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 other than for transfers to
Institutional Accredited Investors, as provided herein. In connection with
any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Trust Fund for any costs (including the cost of the Certificate
Registrar's counsel's review of the documents and any legal opinions,
submitted by the transferor or transferee to the Certificate Registrar as
provided herein) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each
transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer.
(i) Subject to Section 5.02(e), transfers of the Class S, Class R
and Class LR Certificates may be made only in accordance with this Section
5.02(i). The Certificate Registrar shall register the transfer of a Class S,
Class R or Class LR Certificate only if (x) the transferor has advised the
Certificate Registrar in writing that such Certificate is being transferred
to a Qualified Institutional Buyer, an Affiliated Person or an Institutional
Accredited Investor and (y) prior to such transfer the transferee furnishes
to the Certificate Registrar an Investment Representation Letter. In
addition, the Certificate Registrar may as a condition of the registration of
any such transfer require the transferor to furnish such other
certifications, legal opinions or other information (at the transferor's
expense) as it may reasonably require to confirm that the proposed transfer
is being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Master Servicer, the Trustee nor
the Certificate Registrar are obligated to register or qualify the Class X,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class S, Class R or Class LR Certificates under
the Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of such Certificates
without registration or qualification. Any Certificateholder desiring to
affect such a transfer shall, and does hereby agree to, indemnify the
Depositor, the Master Servicer, the Trustee and the Certificate Registrar,
against any loss, liability or expense that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws.
(k) No transfer of any Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R or Class LR Certificate (each, a
"Restricted Certificate") shall be made to (i) an employee benefit plan
subject to the fiduciary responsibility provisions of ERISA, or Section 4975
of the Code, or a governmental plan, as defined in Section 3(32) of ERISA,
subject to any federal, state or local law ("Similar Law") which is to a
material extent similar to the foregoing provisions of ERISA or the Code
(each, a "Plan") or (ii) a collective investment fund in which a Plan is
invested, an insurance company that is using the assets of any insurance
company separate account or general account in which the assets of any such
Plan are invested (or which are deemed pursuant to ERISA or any Similar Law
to include assets of Plans) to acquire any such Restricted Certificate or any
other Person acting on behalf of any Plan or using the assets of any Plan to
acquire any such Restricted Certificate, other than (with respect to transfer
of Restricted Certificates other than the Class S Certificates and the
Residual Certificates) an insurance company using the assets of its general
account under circumstances whereby such transfer to such insurance company
would be exempt from the "prohibited transaction" provisions of Sections 406
and 407 of ERISA and Section 4975 of the Code under Sections I and III of
PTCE 95-60, or a substantially similar exemption under Similar Law. Each
prospective transferee of a Restricted Certificate shall either (i) deliver
to the Depositor, the Certificate Registrar and the Trustee, a transfer or
representation letter, substantially in the form of Exhibit D-2 hereto,
stating that the prospective transferee is not a Person referred to in (i) or
(ii) above or (ii) in the event the transferee is such an entity specified in
(i) or (ii) above (except in the case of a Class S Certificate or a Residual
Certificate, which may not be transferred unless the transferee represents it
is not such an entity), such entity shall provide any opinions of counsel,
officers' certificates or agreements as may be required by, and in form and
substance satisfactory to, the Depositor, the Trustee and the Certificate
Registrar, to the effect that the purchase and holding of the Certificates by
or on behalf of a Plan will not constitute or result in a non-exempt
prohibited transaction within the meaning of Sections 406 and 407 of ERISA
and Section 4975 of the Code, and will not subject the Master Servicer, the
Special Servicer, the Depositor, the Trustee or the Certificate Registrar to
any obligation or liability. None of the Trustee or the Certificate Registrar
shall register a Class S, Class R or Class LR Certificate in any Person's
name unless such Person has provided the letter referred to in clause (i) of
the preceding sentence. The transferee of a beneficial interest in a Global
Certificate that is a Restricted Certificate shall be deemed to represent
that it is not a Plan or a Person acting on behalf of any Plan or using the
assets of any Plan to acquire such interest other than (with respect to
transfers of beneficial interests in Global Certificates which are Restricted
Certificates other than the Class S Certificates and the Residual
Certificates) an insurance company using the assets of its general account
under circumstances whereby such transfer to such insurance company would be
exempt from the "prohibited transaction" provisions of Sections 406 and 407
of ERISA and Section 4975 of the Code under Sections I and III of PTCE 95-60,
or a substantially similar exemption under Similar Law. Any transfer of a
Restricted Certificate that would violate or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code or Similar Law
shall be deemed absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall
be deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and the rights of each Person
acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be
a Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted Transferee. Any such Person
shall promptly notify the Certificate Registrar of any change or impending
change in its status (or the status of the beneficial owner of such
Ownership Interest) as a Permitted Transferee. Any acquisition described
in the first sentence of this Section 5.02(l) by a Person who is not a
Permitted Transferee or by a Person who is acting as an agent of a Person
who is not a Permitted Transferee shall be void and of no effect, and the
immediately preceding owner who was a Permitted Transferee shall be
restored to registered and beneficial ownership of the Ownership Interest
as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate
Registrar shall not recognize the Transfer, and such proposed Transfer
shall not be effective, without such consent with respect thereto. In
connection with any proposed Transfer of any Ownership Interest, the
Certificate Registrar shall, as a condition to such consent, (x) require
delivery to it in form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as Exhibit C-1
(a "Transferee Affidavit") of the proposed transferee (A) that such
proposed transferee is a Permitted Transferee and (B) stating that (i) the
proposed transferee historically has paid its debts as they have come due
and intends to do so in the future, (ii) the proposed transferee
understands that, as the holder of an Ownership Interest, it may incur
liabilities in excess of cash flows generated by the residual interest,
(iii) the proposed transferee intends to pay taxes associated with holding
the Ownership Interest as they become due, (iv) the proposed transferee
will not transfer the Ownership Interest to any Person that does not
provide a Transferee Affidavit or as to which the proposed transferee has
actual knowledge that such Person is not a Permitted Transferee or is
acting as an agent (including a broker, nominee or other middleman) for a
Person that is not a Permitted Transferee, (v) the proposed transferee
will not cause income from the Class R or Class LR Certificate to be
attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the proposed transferee
or any other U.S. Person and (vi) the proposed transferee expressly agrees
to be bound by and to abide by the provisions of this Section 5.02(l) and
(y) other than in connection with the initial issuance of the Class R and
Class LR Certificates, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the "Transferor
Letter"), that the proposed transferor has no actual knowledge that the
proposed transferee is not a Permitted Transferee and has no actual
knowledge or reason to know that the proposed transferee's statements in
the preceding clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible Officer of
the Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer shall not be
registered on the Certificate Register; provided, however, that the
Certificate Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a Permitted
Transferee.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or opinions
of counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the Depository or
between or among Depository Participants or Beneficial Owners made in violation
of applicable restrictions.
Upon notice to the Certificate Registrar that there has occurred a
Transfer to any Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, and in any event not later than 60 days after a request for
information from the transferor of such Ownership Interest, or such agent, the
Certificate Registrar and the Trustee agree to furnish to the IRS and the
transferor of such Ownership Interest or such agent such information necessary
to the application of Section 860E(e) of the Code as may be required by the
Code, including, but not limited to, the present value of the total anticipated
excess inclusions with respect to such Class R or Class LR Certificate (or
portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such information.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Certificate Registrar, or
the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Certificate Registrar such security or indemnity as may be required by it to
save it, the Trustee and the Master Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Appointment of Paying Agent. The Trustee may appoint a
paying agent for the purpose of making distributions to Certificateholders
pursuant to Section 4.01. The Trustee shall cause such Paying Agent, if other
than the Trustee or the Master Servicer, to execute and deliver to the Master
Servicer and the Trustee an instrument in which such Paying Agent shall agree
with the Master Servicer and the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums have been paid to the
Certificateholders or disposed of as otherwise provided herein. The initial
Paying Agent shall be the Trustee. Except for the Trustee, as the initial Paying
Agent, the Paying Agent shall at all times be an entity having a long-term
unsecured debt rating of at least "A+" by S&P and Fitch, or shall be otherwise
acceptable to each Rating Agency.
Section 5.05 Access to Certificateholders' Names and Addresses. (a)
If any Certificateholder (for purposes of this Section 5.05, an "Applicant")
applies in writing to the Certificate Registrar, and such application states
that the Applicant desires to communicate with other Certificateholders, the
Certificate Registrar shall furnish or cause to be furnished to such Applicant a
list of the names and addresses of the Certificateholders as of the most recent
Record Date, at the expense of the Applicant.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the
disclosure of any information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Actions of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by agent duly appointed in writing; and
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
when required, to the Master Servicer. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee and the Master Servicer,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every Holder
of every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted
to be done, by the Trustee or the Master Servicer in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such
additional proof of any matter referred to in this Section 5.06 as it shall
deem necessary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
each shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement.
Section 6.02 Merger or Consolidation of the Master Servicer, the
Special Servicer or the Depositor. Subject to the following paragraph, the
Master Servicer will keep in full effect its existence, rights and good standing
as a corporation under the laws of the State of Delaware and will not jeopardize
its ability to do business in each jurisdiction in which the Mortgaged
Properties securing the Mortgage Loans that it is servicing are located or to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans that it is servicing and to perform its respective
duties under this Agreement.
The Master Servicer, the Special Servicer or the Depositor may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which it shall be a party, or any Person succeeding
to its business, shall be the successor of the Master Servicer, the Special
Servicer or the Depositor hereunder, and shall be deemed to have assumed all of
the liabilities of the Master Servicer, the Special Servicer or the Depositor
hereunder, if each of the Rating Agencies has confirmed in writing that such
merger or consolidation or transfer of assets and succession, in and of itself,
will not cause a downgrade, qualification or withdrawal of the then-current
ratings assigned by such Rating Agency to any Class of Certificates.
Notwithstanding the foregoing, prior to the date upon which the Trust's Exchange
Act reporting obligation is suspended by the filing of the Form 15 as
contemplated by Section 10.10, no Master Servicer or Special Servicer may remain
the Master Servicer or Special Servicer under this Agreement after (x) being
merged or consolidated with or into any Person that is a Prohibited Party, or
(y) transferring all or substantially all of its assets to any Person if such
Person is a Prohibited Party, except to the extent (i) the Master Servicer or
the Special Servicer is the surviving entity of such merger, consolidation or
transfer and has been and continues to be in compliance with its Regulation AB
reporting obligations hereunder or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer and Others. (a) Neither the Depositor, the Master Servicer nor the
Special Servicer nor any of the directors, officers, employees, members,
managers or agents (including sub-servicers) of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund,
the Certificateholders or any Serviced Companion Loan Noteholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement (including actions taken or not taken at the direction of the
Directing Certificateholder), or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or the
Special Servicer, or any member, manager, director, officer, employee or agent
(including sub-servicers) of the Depositor, the Master Servicer or the Special
Servicer, against any breach of warranties or representations made herein, or
against any liability which would otherwise be imposed by reason of willful
misconduct, bad faith, fraud or negligence (or in the case of the Master
Servicer or Special Servicer, by reason of any specific liability imposed
hereunder for a breach of the Servicing Standard) in the performance of duties
or by reason of negligent disregard of obligations or duties hereunder. The
Depositor, the Master Servicer, the Special Servicer, and any member, manager,
director, officer, employee or agent (including sub-servicers) of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any appropriate Person respecting any matters arising hereunder. The Depositor,
the Master Servicer, the Special Servicer and any member, manager, director,
officer, employee or agent (including sub-servicers) of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Collection Account (in accordance with Section
3.06(b) or, if such matter relates directly to any Serviced Whole Loan, first
out of the applicable Serviced Whole Loan Collection Account; provided that such
expenses will first be allocated to the related Serviced B Loan, if any, and
then will be allocated to the related Mortgage Loan, or in the case of a
Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata
basis as between the related Mortgage Loan and any related Serviced Pari Passu
Companion Loan (based on their respective outstanding principal balance)), and
then, if funds therein are insufficient, out of the Collection Account,
provided, further, that with respect to the Buckeye Portfolio Whole Loan, (i)
such allocation first to the related B Loan shall only apply during the
occurrence and continuance of a material default under the Mortgage Loan
Documents related to the Buckeye Portfolio Whole Loan as defined in Section 3(b)
of the Buckeye Portfolio Intercreditor Agreement.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and
in its opinion does not expose it to any expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any action related to its obligations hereunder which
it may deem necessary or desirable with respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund and, in the case of any Serviced Whole Loan, first, out of amounts
allocated to the related B Loan, if any, second, out of the related Serviced
Whole Loan Collection Account, attributable to the Mortgage Loan, or in the case
of a Serviced Whole Loan with a Serviced Pari Passu Companion Loan, on a pro
rata basis as between the related Mortgage Loan and any related Serviced Pari
Passu Companion Loan (based on their respective outstanding principal balance),
and then, if funds therein are insufficient, out of the Collection Account,
provided, that with respect to the Buckeye Portfolio B Loan, such allocation
first to the related B Loan shall only apply during the occurrence and
continuance of a material default under the Mortgage Loan Documents related to
the Buckeye Portfolio Whole Loan as defined in Section 3(b) of the Buckeye
Portfolio Intercreditor Agreement and the Depositor will not be entitled to such
reimbursement.
The terms of this Section 6.03 shall survive the termination of any
party hereto or of this Agreement.
(b) The Directing Certificateholder shall have no liability
whatsoever to the Trust Fund or any Certificateholder (except that if the
Directing Certificateholder is the Controlling Class Representative, the
Directing Certificateholder shall have no liability to any Controlling Class
Certificateholder for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that, with respect to Controlling Class
Certificateholders, the Controlling Class Representative shall not be
protected against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or
by reason of reckless disregard of obligations or duties). By its acceptance
of a Certificate, each Certificateholder confirms its understanding that the
Directing Certificateholder may take actions that favor the interests of one
or more Classes of the Certificates over other Classes of the Certificates or
one or more Companion Loan Noteholders over Certificateholders or other
Companion Loan Noteholders, and that the Directing Certificateholder may have
special relationships and interests that conflict with those of Holders of
some Classes of the Certificates or other Companion Loan Noteholders, that
the Directing Certificateholder may act solely in its own interest (and if
the Directing Certificateholder is the Controlling Class Representative, the
interests of the Holders of the Controlling Class), that the Directing
Certificateholder does not have any duties to the Holders of any Class of
Certificates or other Companion Loan Noteholders (and if the Directing
Certificateholder is the Controlling Class Representative, other than the
Controlling Class), that the Directing Certificateholder that is not the
Controlling Class Representative may take actions that favor its own interest
over the interests of the Certificateholders or other Companion Loan
Noteholders (and if the Directing Certificateholder is the Controlling Class
Representative, such Directing Certificateholder may favor the interests of
the Holders of the Controlling Class over the interests of the Holders of one
or more other classes of Certificates), that the Directing Certificateholder
that is not the Controlling Class Representative, absent willful misfeasance,
bad faith or negligence, shall not be deemed to have been negligent or
reckless, or to have acted in bad faith or engaged in willful misfeasance, by
reason of its having acted solely in its own interests (and if the Directing
Certificateholder is the Controlling Class Representative, in the interests
of the Holders of the Controlling Class), and that the Directing
Certificateholder shall have no liability whatsoever for having so acted, and
no Certificateholder or Companion Loan Noteholder may take any action
whatsoever against the Directing Certificateholder or any director, officer,
employee, agent or principal thereof for having so acted.
Section 6.04 Limitation on Resignation of the Master Servicer and
the Special Servicer; Termination of the Master Servicer and the Special
Servicer. (a) The Master Servicer and the Special Servicer may assign their
respective rights and delegate their respective duties and obligations under
this Agreement in connection with the sale or transfer of a substantial portion
of their mortgage servicing or asset management portfolio, provided that: (i)
the purchaser or transferee accepting such assignment and delegation (A) shall
be an established mortgage finance institution, bank or mortgage servicing
institution, organized and doing business under the laws of any state of the
United States or the District of Columbia, authorized under such laws to perform
the duties of the Master Servicer or Special Servicer or a Person resulting from
a merger, consolidation or succession that is permitted under Section 6.02, (B)
shall be acceptable to each Rating Agency as confirmed by a letter from each
Rating Agency delivered to the Trustee that such assignment or delegation will
not cause a downgrade, withdrawal or qualification of the then-current ratings
of the Certificates, (C) shall execute and deliver to the Trustee an agreement
that contains an assumption by such Person of the due and punctual performance
and observance of each covenant and condition to be performed or observed by the
Master Servicer or Special Servicer, as applicable under this Agreement from and
after the date of such agreement and (D) shall not be a Prohibited Party; (ii)
as confirmed by a letter from each Rating Agency delivered to the Trustee, each
Rating Agency's rating or ratings of the Certificates in effect immediately
prior to such assignment, sale or transfer will not be qualified, downgraded or
withdrawn as a result of such assignment, sale or transfer; (iii) the Master
Servicer or the Special Servicer shall not be released from its obligations
under this Agreement that arose prior to the effective date of such assignment
and delegation under this Section 6.04; and (iv) the rate at which the Servicer
Compensation or Special Servicer Compensation, as applicable (or any component
thereof) is calculated shall not exceed the rate then in effect. Upon acceptance
of such assignment and delegation, the purchaser or transferee shall be the
successor Master Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in Section 6.02 and this Section 6.04, the
Master Servicer and the Special Servicer shall not resign from its respective
obligations and duties hereby imposed on it except upon determination that
such duties hereunder are no longer permissible under applicable law. Any
such determination permitting the resignation of the Master Servicer or the
Special Servicer, as applicable, shall be evidenced by an Opinion of Counsel
(obtained at the resigning Master Servicer's or Special Servicer's expense)
to such effect delivered to the Trustee.
(c) The Trustee shall be permitted to remove the Master Servicer
or the Special Servicer upon a Master Servicer Event of Default or a Special
Servicer Event of Default, as applicable. Without limiting the generality of
the succeeding paragraph, no such removal shall be effective unless and until
(i) the Master Servicer or the Special Servicer has been paid any unpaid
Servicer Compensation or Special Servicer Compensation, as applicable,
unreimbursed Advances (including Advance Interest Amounts thereon to which it
is entitled) and all other amounts to which the Master Servicer or the
Special Servicer is entitled hereunder to the extent such amounts accrue
prior to such effective date and (ii) with respect to a resignation by the
Master Servicer, the successor Master Servicer has deposited into the
Investment Accounts from which amounts were withdrawn to reimburse the
terminated Master Servicer, an amount equal to the amounts so withdrawn, to
the extent such amounts would not have been permitted to be withdrawn except
pursuant to this paragraph, in which case the successor Master Servicer
shall, immediately upon deposit, have the same right of reimbursement or
payment as the terminated Master Servicer had immediately prior to its
termination without regard to the operation of this paragraph.
No resignation or removal of the Master Servicer or the Special
Servicer as contemplated by the preceding paragraphs shall become effective
until the Trustee or a successor Master Servicer or Special Servicer shall have
assumed the resigning or terminated Master Servicer's or the Special Servicer's
responsibilities, duties, liabilities and obligations hereunder. If no successor
Master Servicer or Special Servicer can be obtained to perform such obligations
for the same compensation to which the terminated Master Servicer or Special
Servicer would have been entitled, additional amounts payable to such successor
Master Servicer or Special Servicer shall be treated as Realized Losses.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer and the Special Servicer. The Master Servicer and the
Special Servicer shall afford the Depositor, the Underwriters, the Trustee and
the Rating Agencies, upon reasonable notice, during normal business hours access
to all records maintained by it in respect of its rights and obligations
hereunder and access to its officers responsible for such obligations. Upon
request, the Master Servicer and/or the Special Servicer, as applicable, shall
furnish to the Depositor, the Master Servicer, Special Servicer and the Trustee
its most recent publicly available financial statements (or, with respect to the
Master Servicer, those of its ultimate parent) and such other non-proprietary
information as the Master Servicer or Special Servicer, as the case may be,
shall determine in its sole and absolute discretion as it possesses, which is
relevant to the performance of its duties hereunder and which it is not
prohibited by applicable law or contract from disclosing. The Depositor may, but
is not obligated to, enforce the obligations of the Master Servicer or the
Special Servicer hereunder which are in default and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of such
Person hereunder or exercise its rights hereunder, provided that the Master
Servicer and the Special Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. In the event the Depositor or its designee undertakes any such action,
it will be reimbursed by the Trust Fund from the Collection Account (or with
respect to a Serviced Whole Loan, to the extent such reimbursement is allocable
to such Serviced Whole Loan Collection Account, as applicable, provided, that
with respect to the Buckeye Portfolio Whole Loan, the Depositor will not be
entitled to such reimbursement) as provided in Section 3.06 and Section 6.03(a)
hereof to the extent not recoverable from the Master Servicer or Special
Servicer, as applicable. Neither the Depositor nor the Trustee and neither the
Master Servicer, with respect to the Special Servicer, or the Special Servicer,
with respect to the Master Servicer, shall have any responsibility or liability
for any action or failure to act by the Master Servicer or the Special Servicer
and neither such Person is obligated to monitor or supervise the performance of
the Master Servicer or the Special Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
Section 6.06 The Master Servicer or Special Servicer as Owners of a
Certificate. The Master Servicer or an Affiliate of the Master Servicer, or the
Special Servicer or an Affiliate of the Special Servicer, may become the Holder
(or with respect to a Global Certificate, Beneficial Owner) of any Certificate
with the same rights it would have if it were not the Master Servicer or the
Special Servicer or an Affiliate thereof. If, at any time during which the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer is the Holder or Beneficial Owner of any Certificate,
the Master Servicer or the Special Servicer proposes to take action (including
for this purpose, omitting to take action) that (i) is not expressly prohibited
by the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, the Master Servicer or the Special Servicer may but need not seek the
approval of the Certificateholders to such action by delivering to the Trustee a
written notice that (i) states that it is delivered pursuant to this Section
6.06, (ii) identifies the Percentage Interest in each Class of Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer, and (iii) describes in
reasonable detail the action that the Master Servicer or the Special Servicer
proposes to take. The Trustee, upon receipt of such notice, shall forward it to
the Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate) together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding a majority of the Voting Rights of all
Certificateholders and the Controlling Class Representative (calculated without
regard to the Certificates beneficially owned by the Master Servicer or its
Affiliates or the Special Servicer or its Affiliates, as applicable) shall have
consented in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, of the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, except in the case of unusual circumstances.
Section 6.07 Certain Matters Relating to the Non-Serviced Mortgage
Loan. Each Other Servicer, the Other Special Servicer, the Other Depositor and
the Other Trustee, and any of their respective directors, officers, employees or
agents (collectively, the "Other Indemnified Parties"), shall be indemnified by
the Trust and held harmless against the Trust's pro rata share (subject to the
related Co-Lender Agreement) of any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action or claim relating to the Non-Serviced Mortgage Loan under the Other
Pooling and Servicing Agreement or this Agreement (but excluding any such losses
allocable to the related Companion Loans), reasonably requiring the use of
counsel or the incurring of expenses; provided, however, that such
indemnification will not extend to any losses, liabilities or expenses incurred
by reason of any Other Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of its obligations or duties or by reason of
negligent disregard of obligations or duties under the Other Pooling and
Servicing Agreement.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. (a) "Master Servicer Event of
Default," wherever used herein, means any one of the following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to the Collection Account on the day and by the time such deposit
was first required to be made under the terms of this Agreement, which
failure is not remedied within one Business Day or (B) any failure by the
Master Servicer to deposit into, or remit to the Trustee for deposit into,
any Distribution Account any amount required to be so deposited or
remitted (including, without limitation, any required P&I Advance, unless
the Master Servicer determines such P&I Advance is a Nonrecoverable
Advance), which failure is not remedied by 11:00 a.m. (New York City time)
on the relevant Distribution Date (provided, however, that to the extent
the Master servicer does not timely make such remittance to the Trustee,
the Master Servicer shall pay the Trustee for the account of the Trustee
interest on any amount not timely remitted at the Prime Rate from and
including the applicable required remittance date to, but not including,
the date such remittance is actually made) or any failure by the Master
Servicer to remit to any holder of a Serviced Companion Loan, as and when
required by this Agreement or any related Co-Lender Agreement, any amount
required to be so remitted;
(ii) any failure on the part of the Master Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of 30 days (15 days in the case of the Master
Servicer's failure to make a Property Advance or 45 days in the case of
failure to pay the premium for any insurance policy required to be force
placed by such Master Servicer pursuant to the Pooling and Servicing
Agreement or in any event such shorter period of time as is necessary to
avoid the commencement of foreclosure proceedings for any lien relating to
unpaid real estate taxes or assessments or a lapse in any required
insurance coverage) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master Servicer, by any other party hereto, with a copy to each other
party to this Agreement by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25% or by an affected Serviced Companion Loan Noteholder; provided,
however, if such failure is capable of being cured and the Master Servicer
is diligently pursuing such cure, such 30- or 45-day period, as
applicable, will be extended an additional 30 days;
(iii) any breach on the part of the Master Servicer of any
representation or warranty contained in Section 2.04(a) which materially
and adversely affects the interests of any Class of Certificateholders or
Serviced Companion Loan Noteholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Master Servicer by
the Depositor or the Trustee, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25% or by an affected Serviced Companion Loan Noteholder;
provided, however, if such breach is capable of being cured and the Master
Servicer is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days;
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days;
(v) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer
or of or relating to all or substantially all of its property;
(vi) the Master 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;
(vii) the Master Servicer has been removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer and any of the
ratings assigned to the Certificates have been qualified, downgraded or
withdrawn in connection with such removal;
(viii) a servicing officer of the Master Servicer obtains actual
knowledge that Fitch has (i) qualified, downgraded or withdrawn its rating
or ratings of one or more Classes of Certificates, or (ii) has placed one
or more Classes of Certificates or Serviced Companion Loan Securities on
"watch status" in contemplation of a ratings downgrade or withdrawal (and
such "watch status" placement shall not have been withdrawn by Fitch
within 60 days of the date such servicing officer obtained such actual
knowledge) and, in the case of either of clauses (i) or (ii), cited
servicing concerns with the Master Servicer as the sole or material factor
in such rating action; or
(ix) subject to Section 10.16(c), the Master Servicer shall fail to
deliver any Exchange Act reporting items required to be delivered by such
servicer under Article X (other than items to be delivered by a Loan
Seller Sub-Servicer) by the time required under Article X after any
applicable grace periods) and with respect to any primary servicer,
sub-servicer or Servicing Function Participant (such entity, the
"Sub-Servicing Entity") retained by the Master Servicer (but excluding any
Loan Seller Sub-Servicer) if such Sub-Servicing Entity fails to provide
any Exchange Act reporting items required to be delivered by it and the
Master Servicer fails to subsequently provide such Exchange Act reporting
items in place of such Sub-Servicing Entity (beyond the applicable grace
period) it shall be an event of default with respect to the Master
Servicer.
Then, and in each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, the Trustee may (and shall at the written
direction of the Depositor with respect to clause (ix) above), and at the
written direction of the Holders of at least 51% of the aggregate Voting Rights
of all Certificates shall terminate all of the rights and obligations of the
Master Servicer (other than the rights to indemnification provided in Section
6.03 and compensation provided in Section 3.12). In the case of clauses (vii)
and (viii) above, the Trustee shall be required to notify Certificateholders of
such Master Servicer Event of Default and request whether such
Certificateholders and, if applicable, the Serviced Companion Loan Noteholders
favor such termination.
In the event that the Master Servicer is also the Special Servicer
and the Master Servicer is terminated as provided in this Section 7.01, then the
Master Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein,
means any one of the following events:
(i) any failure by the Special Servicer to deposit into the REO
Account, or to remit to the Master Servicer for deposit into, the
Collection Account (or, in the case of a Serviced Whole Loan, the related
Serviced Whole Loan Collection Account) any amount required to be so
deposited or remitted by the Special Servicer pursuant to, and at the time
specified by, the terms of this Agreement; provided, however, that the
failure of the Special Servicer to remit such amount to the Master
Servicer shall not be an Event of Default if such failure is remedied
within one Business Day and if the Special Servicer has compensated the
Master Servicer for any loss of income on such amount suffered by the
Master Servicer due to and caused by the late remittance of the Special
Servicer and reimburse the Trust for any resulting advance interest due to
the Master Servicer; or
(ii) any failure on the part of the Special Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Special Servicer, by any other party hereto, with a copy to each
other party to this Agreement by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25% or by an affected Serviced Companion Loan Noteholder; provided,
however, if such failure is capable of being cured and the Special
Servicer is diligently pursuing such cure, such 30- or 45-day period, as
applicable, will be extended an additional 30 days;
(iii) any breach on the part of the Special Servicer of any
representation or warranty contained in Section 2.04(b) which materially
and adversely affects the interests of any Class of Certificateholders or
Serviced Companion Loan Noteholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Special Servicer by
the Depositor or the Trustee, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25% or by an affected Serviced Companion Loan Noteholder;
provided, however, if such breach is capable of being cured and the
Special Servicer is diligently pursuing such cure, such 30-day period will
be extended an additional 30 days;
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Special Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days;
(v) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Special Servicer
or of or relating to all or substantially all of its property;
(vi) the Special 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;
(vii) the Special Servicer has been removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Special Servicer and any of
the ratings assigned to the Certificates have been qualified, downgraded
or withdrawn in connection with such removal, whichever is earlier;
(viii) a servicing officer of the Special Servicer obtains actual
knowledge that Fitch has (i) qualified, downgraded or withdrawn its rating
or ratings of one or more Classes of Certificates or Serviced Companion
Loan Securities, or (ii) has placed one or more Classes of Certificates or
Serviced Companion Loan Securities on "watch status" in contemplation of a
ratings downgrade or withdrawal (and such "watch status" placement shall
not have been withdrawn by Fitch within 60 days of the date such servicing
officer obtained such actual knowledge) and, in the case of either of
clauses (i) or (ii), cited servicing concerns with the Special Servicer as
the sole or material factor in such rating action; or
(ix) subject to Section 10.16(c) and 10.16(d), the Special Servicer
shall fail to deliver any Exchange Act reporting items required to be
delivered by such servicer under Article X by the time required under
Article X (after any applicable grace periods) but that with respect to
any primary servicer, sub-servicer or Servicing Function Participant (such
entity, the "Sub-Servicing Entity") retained by the Special Servicer (but
excluding one which the Special Servicer has been directed to retain by a
Sponsor or Mortgage Loan Seller) the Sub-Servicing Entity will be
automatically terminated if it defaults in accordance with the provision
of this clause (ix) and the Special Servicer will be required to provide
the reports required by the Sub-Servicing Entity and if the Special
Servicer fails to do so (beyond the applicable grace period) it shall be
an event of default with respect to the Special Servicer.
Then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may (and shall at the written
direction of the Depositor with respect to clause (ix) above), and at the
written direction of the Holders of at least 51% of the aggregate Voting Rights
of all Certificates shall terminate all of the rights and obligations of the
Special Servicer (other than the rights to indemnification provided in Section
6.03(a) and compensation provided in Section 3.12(c)). In the case of clauses
(vii) and (viii) above, the Trustee shall be required to notify
Certificateholders and Serviced Companion Loan Noteholders of such Special
Servicer Event of Default and request whether such Certificateholders and, if
applicable, the Serviced Companion Loan Noteholders, favor such termination.
(c) Notwithstanding Section 7.01(a), if any Master Servicer Event
of Default occurs that affects a Serviced Pari Passu Companion Loan and the
Master Servicer is not otherwise terminated, the Trustee, at the direction of
the Serviced Companion Loan Trustee with respect to such Serviced Pari Passu
Companion Loan (exercised at the discretion of certificateholders holding at
least 25% of the certificate balance of the certificates issued by the
related securitization trust) shall be entitled to direct the Trustee to
appoint a sub-servicer (or if a sub-servicer is then sub-servicing such
Serviced Whole Loan, to appoint a new sub-servicer to service such Serviced
Whole Loan, but only if such sub-servicer is in default under the related
sub-servicing agreement) with respect all of the rights and obligations of
the Master Servicer under this Agreement related to such Serviced Whole Loan.
The Trustee shall appoint a replacement sub-servicer with respect to such
Serviced Whole Loan, selected by the holders of such Serviced Whole Loan (or
their designees) (but excluding any holder of a B Loan), then holding a
majority of the aggregate Stated Principal Balance of such Serviced Whole
Loan, as the case may be, and, if the holders of such Serviced Whole Loan (or
their designees) (but excluding any holder of a B Loan), then holding a
majority of the aggregate Stated Principal Balance of such Serviced Whole
Loan, are not able to agree on a sub-servicer (or, if such Serviced Whole
Loan is being sub-serviced, a new sub-servicer) within 45 days, then the
Controlling Class Representative shall select such sub-servicer. The Trustee
shall notify the Controlling Class Representative and the applicable Serviced
Pari Passu Companion Loan Noteholders with respect to the appointment of a
replacement sub-servicer (and shall provide such non-proprietary information
as may be reasonably requested by and necessary in the reasonable
determination of any such Person in order to make a judgment, the expense of
providing such information to be an expense of the requesting Person);
provided, that such sub-servicer meets the eligibility requirements of a
successor master servicer under Section 7.02 (including receipt of a
confirmation from each Rating Agency that such appointment would not cause
such Rating Agency to qualify, withdraw or downgrade any of its then-current
ratings on the Certificates and any related Serviced Companion Loan
Securities with respect to a Serviced Pari Passu Companion Loan) and the
eligibility requirements of each Serviced Companion Loan Securitization
Agreement.
(d) In the event that the Master Servicer or the Special Servicer
is terminated pursuant to this Section 7.01, the Trustee (the "Terminating
Party") shall, by notice in writing to the Master Servicer or the Special
Servicer, as the case may be (the "Terminated Party"), terminate all of its
rights and obligations under this Agreement and in and to the Mortgage Loans
and the proceeds thereof, other than any rights the Terminated Party may have
hereunder as a Certificateholder and any rights or obligations that accrued
prior to the date of such termination (including the right to receive all
amounts accrued or owing to it under this Agreement, plus interest at the
Advance Rate on such amounts until received to the extent such amounts bear
interest as provided in this Agreement, with respect to periods prior to the
date of such termination and the right to the benefits of Section 6.03
notwithstanding any such termination, and with respect to (i) the initial
Master Servicer (or its third party assignee) it shall also be entitled to
the Excess Servicing Strip and (ii) the Special Servicer, shall also be
entitled to receive any Workout Fee subsequent to its termination as Special
Servicer, pursuant to Section 3.12(c) and any successor Special Servicer
shall not be entitled to such Workout Fee received by the terminated Special
Servicer). On or after the receipt by the Terminated Party of such written
notice, all of its authority and power under this Agreement, whether with
respect to the Certificates (except that the Terminated Party shall retain
its rights as a Certificateholder in the event and to the extent that it is a
Certificateholder), the Mortgage Loans, the Serviced Companion Loans, or
otherwise, shall pass to and be vested in the Terminating Party pursuant to
and under this Section and, without limitation, the Terminating Party is
hereby authorized and empowered to execute and deliver, on behalf of and at
the expense of the Terminated Party, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. The
Master Servicer and the Special Servicer each agree in the event it is
terminated pursuant to this Section 7.01 to promptly (and in any event no
later than ten Business Days subsequent to such notice) provide, at its own
expense, the Terminating Party with all documents and records requested by
the Terminating Party to enable the Terminating Party to assume its functions
hereunder, and to cooperate with the Terminating Party and the successor to
its responsibilities hereunder in effecting the termination of its
responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Master Servicer or Special Servicer or the
Terminating Party, as applicable, for administration by it of all cash
amounts which shall at the time be or should have been credited by the Master
Servicer or the Special Servicer to the Collection Account, the applicable
Serviced Whole Loan Collection Account, any REO Account, any Excess
Liquidation Proceeds Account, Lock-Box Account or Cash Collateral Account or
which shall thereafter be received with respect to the Mortgage Loans, and
shall promptly provide the Terminating Party or such successor Master
Servicer or successor Special Servicer (which may include the Trustee) all
documents and records reasonably requested by it, such documents and records
to be provided in such form as the Terminating Party or such successor Master
Servicer or Special Servicer shall reasonably request (including
electromagnetic form), to enable it to assume the Master Servicer's or
Special Servicer's function hereunder. All reasonable costs and expenses of
the Terminating Party or the successor Master Servicer or successor Special
Servicer incurred in connection with transferring the Mortgage Files to the
successor Master Servicer or Special Servicer and amending this Agreement to
reflect such succession as successor Master Servicer or successor Special
Servicer pursuant to this Section 7.01 shall be paid by the predecessor
Master Servicer or the Special Servicer, as applicable, upon presentation of
reasonable documentation of such costs and expenses. If the predecessor
Master Servicer or Special Servicer (as the case may be) has not reimbursed
the Terminating Party or the successor Master Servicer or Special Servicer
for such expenses within 90 days after the presentation of reasonable
documentation, such expense shall be reimbursed by the Trust Fund; provided
that the Terminated Party shall not thereby be relieved of its liability for
such expenses. If and to the extent that the Terminated Party has not
reimbursed such costs and expenses, the Terminating Party shall have an
affirmative obligation to take all reasonable actions to collect such
expenses on behalf of the Trust Fund.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 7.01, the Terminating Party (subject to Sections
7.01(d)) shall be its successor in all respects in its capacity as the Master
Servicer or the Special Servicer under this Agreement and the transactions set
forth or provided for herein and, except as provided herein, shall be subject to
all the responsibilities, duties, limitations on liability and liabilities
relating thereto and arising thereafter placed on the Master Servicer or Special
Servicer by the terms and provisions hereof, provided, however, that (i) the
Terminating Party shall have no responsibilities, duties, liabilities or
obligations with respect to any act or omission of the Master Servicer or
Special Servicer and (ii) any failure to perform, or delay in performing, such
duties or responsibilities caused by the Terminated Party's failure to provide,
or delay in providing, records, tapes, disks, information or monies shall not be
considered a default by such successor hereunder. The Trustee, as successor
Master Servicer or successor Special Servicer, shall be indemnified to the full
extent provided to the Master Servicer or Special Servicer, as applicable, under
this Agreement prior to the Master Servicer's or the Special Servicer's
termination. The appointment of a successor Master Servicer or successor Special
Servicer shall not affect any liability of the predecessor Master Servicer or
Special Servicer which may have arisen prior to its termination as the Master
Servicer or the Special Servicer. The Terminating Party shall not be liable for
any of the representations and warranties of the Master Servicer or Special
Servicer herein or in any related document or agreement, for any acts or
omissions of the predecessor Master Servicer or predecessor Special Servicer or
for any losses incurred in respect of any Permitted Investment by the Master
Servicer pursuant to Section 3.07 hereunder nor shall the Trustee be required to
purchase any Mortgage Loan or any Serviced Companion Loan hereunder. As
compensation therefor, the Terminating Party as successor Master Servicer or
successor Special Servicer shall be entitled to the Servicing Compensation
(subject to the initial Master Servicer's (or its third party assignee's) right
to the Excess Servicing Strip in accordance with Section 3.12) or Special
Servicing Compensation, as applicable, and all funds relating to the Mortgage
Loans or the Serviced Companion Loans that accrue after the date of the
Terminating Party's succession to which such predecessor Master Servicer or
Special Servicer would have been entitled if such predecessor Master Servicer or
Special Servicer, as applicable, had continued to act hereunder. In the event
any Advances made by the Master Servicer or the Trustee shall at any time be
outstanding, or any amounts of interest thereon shall be accrued and unpaid, all
amounts available to repay Advances and interest hereunder shall be applied
entirely to the Advances made by the Trustee (and the accrued and unpaid
interest thereon), until such Advances and interest shall have been repaid in
full. Notwithstanding the above, the Trustee may, if it shall be unwilling to so
act, or shall (i) if it is unable to so act, (ii) if the Holders of Certificates
entitled to at least 25% of the aggregate Voting Rights or an affected Serviced
Companion Loan Noteholder so request in writing to the Trustee or (iii) if the
Trustee is not an "approved" servicer by any of the Rating Agencies for mortgage
pools similar to the Trust Fund, promptly appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which will not result in a downgrade,
qualification or withdrawal of the then-current rating or ratings assigned to
any Class of Certificates, evidenced in writing by each Rating Agency, as the
successor to the Master Servicer or Special Servicer, as applicable, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer or Special Servicer hereunder. No appointment
of a successor to the Master Servicer or Special Servicer hereunder shall be
effective until the assumption by such successor of all the Master Servicer's or
Special Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Master Servicer (or the Special Servicer if
the Special Servicer is also the Master Servicer) hereunder, unless the Trustee
shall be prohibited by law from so acting, the Trustee shall act in such
capacity as hereinabove provided. Pending the appointment of a successor to the
Special Servicer, the Trustee shall act in such capacity. In connection with
such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans, Serviced Companion Loans, or otherwise as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder after consultation with the Controlling Class
Representative or if such default relates solely to a Serviced Whole Loan, the
Directing Certificateholder, additional amounts shall be paid to such successor
and such amounts in excess of that permitted the Terminated Party shall be
treated as Realized Losses. The Depositor, the Trustee, the Master Servicer or
Special Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders and Other Persons.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register, to each Rating Agency and to
each Serviced Companion Loan Noteholder at its address appearing in the Serviced
Companion Loan Noteholder Register.
(b) Within 30 days after the occurrence of any Event of Default of
which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to all Holders of Certificates, each Rating Agency,
each Serviced Companion Loan Noteholder notice of such Event of Default,
unless such Event of Default shall have been cured or waived.
Section 7.04 Other Remedies of Trustee. During the continuance of
any Servicer Event of Default or a Special Servicer Event of Default, so long as
the Master Servicer Event of Default or Special Servicer Event of Default, if
applicable, shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as Trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders and,
in the case of any Serviced Companion Loan, of the related Serviced Companion
Loan Noteholder (including the institution and prosecution of all judicial,
administrative and other proceedings and the filing of proofs of claim and debt
in connection therewith). In such event, the legal fees, expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund (and, in the case of any Serviced Whole Loan first
of the related Serviced B Loan, if any, and second, to the extent such expense
remains unpaid, of the related Mortgage Loan, or in the case of a Serviced Whole
Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis as between
the related Mortgage Loan and any related Serviced Pari Passu Companion Loan
(based on their respective outstanding principal balance) provided, that with
respect to the Buckeye Portfolio Whole Loan, such allocation first to the
related Serviced B Loan Noteholders shall only apply during the occurrence and
continuance of a material default under the Mortgage Loan Documents related to
the Buckeye Portfolio Whole Loan as defined in Section 3(b) of the Buckeye
Portfolio Intercreditor Agreement) and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account (and, if applicable, the
applicable Serviced Whole Loan Collection Account) as provided in Section 3.06.
Except as otherwise expressly provided in this Agreement, no remedy provided for
by this Agreement shall be exclusive of any other remedy, and each and every
remedy shall be cumulative and in addition to any other remedy, and no delay or
omission to exercise any right or remedy shall impair any such right or remedy
or shall be deemed to be a waiver of any Servicer Event of Default or Special
Servicer Event of Default, if applicable.
Section 7.05 Waiver of Past Events of Default; Termination. The
Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting
Rights of the Certificates may, together with each affected Serviced Companion
Loan Noteholder (to the extent they are adversely affected by such Event of
Default), on behalf of all Holders of Certificates may waive any default by the
Master Servicer or the Special Servicer in the performance of its obligations
hereunder and its consequences, except a default in making any required deposits
(including, with respect to the Master Servicer, P&I Advances) to or payments
from the Collection Account, any Serviced Whole Loan Collection Account or the
Lower-Tier Distribution Account, in remitting payments as received or providing
the items required by Article X, in each case in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 7.06 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days of the Event of Default resulting from such failure by
the Master Servicer with respect to Property Advances to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure with
respect to such Property Advances and (y) by 12:00 noon (New York City time) on
the related Distribution Date with respect to P&I Advances pursuant to the
Trustee's notice of failure pursuant to Section 4.07(a) unless the Trustee has
received notice that such failure has been cured by 11:00 a.m. on such
Distribution Date. With respect to any such Advance made by the Trustee, the
Trustee shall succeed to all of the Master Servicer's rights with respect to
Advances hereunder, including, without limitation, the Master Servicer's rights
of reimbursement and interest on each Advance at the Advance Rate, and rights to
determine that a proposed Advance is a Nonrecoverable P&I Advance or Property
Advance, as the case may be (without regard to any impairment of any such rights
of reimbursement caused by the Master Servicer's default in its obligations
hereunder); provided, however, that if Advances made by the Trustee and the
Master Servicer shall at any time be outstanding, or any interest on any Advance
shall be accrued and unpaid, all amounts available to repay such Advances and
the interest thereon hereunder shall be applied entirely to the Advances
outstanding to the Trustee, until such Advances shall have been repaid in full,
together with all interest accrued thereon, prior to reimbursement of the Master
Servicer for such Advances. The Trustee shall be entitled to conclusively rely
on any notice given with respect to a Nonrecoverable Advance or any
determination of nonrecoverability in connection therewith by the Master
Servicer hereunder.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee. (a) The Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement and no permissive right of the Trustee shall be construed as a duty.
During the continuance of an Event of Default of which a Responsible Officer of
the Trustee has actual knowledge, the Trustee, subject to the provisions of
Sections 7.02 and 7.05 shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform on their face to the requirements of this Agreement;
provided, however, that, the Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument provided to it hereunder. If any
such instrument is found not to conform on its face to the requirements of
this Agreement in a material manner, the Trustee shall request the provider
of such instrument to have the instrument corrected, and if the instrument is
not corrected to the Trustee's reasonable satisfaction, the Trustee will
provide notice thereof to the Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall
have any liability arising out of or in connection with this Agreement,
provided, that, subject to Section 8.02, no provision of this Agreement shall
be construed to relieve the Trustee, or any such person, from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct or its own bad faith; and provided, further, that:
(i) The Trustee's duties and obligations shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any resolutions, certificates,
statements, reports, opinions, documents, orders or other instruments
furnished to the Trustee that conform on their face to the requirements of
this Agreement to the extent set forth herein without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to
greater than a majority of the Percentage Interests (or such other
percentage as is specified herein) of each affected Class, or of the
aggregate Voting Rights of the Certificates, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement;
(iv) Neither the Trustee nor any of its directors, officers,
employees, agents or control persons shall be responsible for any act or
omission of any Custodian, Paying Agent or Certificate Registrar that is
not an Affiliate of the Trustee and that is selected other than by the
Trustee, performed or omitted in compliance with any custodial or other
agreement, or any act or omission of the Master Servicer, Special
Servicer, the Depositor or any other Person, including, without
limitation, in connection with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its
respective duties as Trustee in accordance with this Agreement (and, if it
does, all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund and, in the case of any Serviced Whole Loan, first
of the related Serviced B Loan, if any, and second, to the extent such
expense remains unpaid, of the Trust Fund, or in the case of a Serviced
Whole Loan with a Serviced Pari Passu Companion Loan, on a pro rata basis
as between the related Mortgage Loan and any related Serviced Pari Passu
Companion Loan (based on their respective outstanding principal balance);
provided, that with respect to the Buckeye Portfolio Whole Loan, such
allocation first to the related Serviced B Loan Noteholders shall only
apply during the occurrence and continuance of a material default under
the Mortgage Loan Documents related to the Buckeye Portfolio Whole Loan as
defined in Section 3(b) of the Buckeye Portfolio Intercreditor Agreement),
and the Trustee shall be entitled, as provided in Section 3.06 hereof, to
be reimbursed therefor from amounts on deposit in the Collection Account
and with respect to the Serviced Whole Loans, the related Serviced Whole
Loan Collection Account and identified on the Trust Ledger, unless such
legal action arises out of the negligence or bad faith of the Trustee or
any breach of an obligation, representation, warranty or covenant of the
Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of which the
Trustee may be required to act, unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure. The Trustee shall not be
deemed to have actual knowledge of the Master Servicer's or the Special
Servicer's failure to provide scheduled reports, certificates and
statements when and as required to be delivered to the Trustee pursuant to
this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee to expend or risk its own funds,
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if in the opinion
of the Trustee the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Master Servicer or the Special Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, the Master Servicer or the Special
Servicer in accordance with the terms of this Agreement. The Trustee shall not
be required to post any surety or bond of any kind in connection with its
performance of its obligations under this Agreement and the Trustee shall not be
liable for any loss on any investment of funds pursuant to this Agreement.
Notwithstanding any other provision hereof, however, whenever acting as or
instead of the Master Servicer or Special Servicer hereunder or the Trustee
shall comply with the Servicing Standard.
Section 8.02 Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected
in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties and
the Trustee shall not have responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(iii) (A) The Trustee shall not be under any obligation to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby, provided that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an
Event of Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has actual knowledge, to exercise such
of the rights and powers vested in it by this Agreement, and to use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs; and (B) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the meaning of
the Act shall be personally liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% (or such other percentage
as is specified herein) of the Percentage Interests of any affected Class;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such investigation shall be paid
by the Master Servicer or the Special Servicer if an Event of Default
shall have occurred and be continuing relating to the Master Servicer, or
the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys but shall not be relieved of the obligations hereunder,
provided, however, that the Trustee may not perform any duties hereunder
through any Person that is a Prohibited Party.
(b) Following the Startup Day, the Trustee shall not, except as
expressly required by any provision of this Agreement, accept any
contribution of assets to the Trust Fund unless the Trustee shall have
received an Opinion of Counsel (the costs of obtaining such opinion to be
borne by the Person requesting such contribution) to the effect that the
inclusion of such assets in the Trust Fund will not cause the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, or the Grantor
Trust to fail to qualify as a grantor trust, at any time that any
Certificates are outstanding, or subject the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances, or cause the
Grantor Trust not to be treated as a grantor trust.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this
Agreement.
The Trustee shall not have a duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by any Mortgage Loan Seller pursuant to this Agreement or the
eligibility of any Mortgage Loan for purposes of this Agreement.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as the
statements of the Trustee, the Master Servicer, or the Special Servicer and the
Trustee, the Master Servicer and the Special Servicer assume no responsibility
for their correctness. The Trustee, the Master Servicer and the Special Servicer
make no representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan, or
related document. The Trustee shall not at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage, any Mortgage Loan, or the perfection and priority of any Mortgage
or the maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Trust Fund or its ability to generate the payments to
be distributed to Certificateholders under this Agreement. Without limiting the
foregoing, the Trustee shall not be liable or responsible for: (i) the
existence, condition and ownership of any Mortgaged Property; (ii) the existence
of any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of the Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; (iii) the existence of any Mortgage Loan or
the contents of the related Mortgage File on any computer or other record
thereof (other than if the Trustee shall assume the duties of the Master
Servicer or the Special Servicer pursuant to Section 7.02); (iv) the validity of
the assignment of any Mortgage Loan to the Trust Fund or of any intervening
assignment; (v) the completeness of any Mortgage File; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer or the Special Servicer pursuant to Section 7.02);
(vi) the compliance by the Depositor, the Master Servicer or the Special
Servicer with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; (vii) any investment of monies by or at the
direction of the Master Servicer or any loss resulting therefrom, the acts or
omissions of any of the Depositor, the Master Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of the Master Servicer or
Special Servicer pursuant to Section 7.02) or any sub-servicer or any Borrower;
any action of the Master Servicer or Special Servicer (other than if the Trustee
shall assume the duties of the Master Servicer or Special Servicer pursuant to
Section 7.02) or any sub-servicer taken in the name of the Trustee, except to
the extent such action is taken at the express written direction of the Trustee;
(viii) the failure of the Master Servicer or the Special Servicer or any
sub-servicer to act or perform any duties required of them on behalf of the
Trust Fund or the Trustee hereunder; or (ix) any action by or omission of the
Trustee taken at the instruction of the Master Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of the Master Servicer or the
Special Servicer pursuant to Section 7.02) unless the taking of such action is
not permitted by the express terms of this Agreement; provided, however, that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties as specifically set forth in this Agreement. The Trustee shall not be
accountable for the use or application by the Depositor, the Master Servicer or
the Special Servicer of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor,
the Master Servicer or the Special Servicer in respect of the assignment of the
Mortgage Loans or deposited in or withdrawn from the Collection Account, any
Serviced Whole Loan Collection Account, the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account, the Grantor Trust Distribution Account, the
Lock-Box Account, the Cash Collateral Account, the Reserve Accounts, the
Interest Reserve Account, any REO Account or any Excess Liquidation Proceeds
Account or any other account maintained by or on behalf of the Master Servicer
or the Special Servicer, other than any funds held by the Trustee. The Trustee
shall not have any responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Master Servicer) or to record this
Agreement. In making any calculation hereunder which includes as a component
thereof the payment or distribution of interest for a stated period at a stated
rate "to the extent permitted by applicable law," the Trustee shall assume that
such payment is so permitted unless a Responsible Officer of the Trustee has
actual knowledge, or receives an Opinion of Counsel (at the expense of the
Person asserting the impermissibility) to the effect, that such payment is not
permitted by applicable law. The Depositor is not obligated to monitor or
supervise the performance of the Trustee under this Agreement or otherwise.
Section 8.04 Trustee May Own Certificates. The Trustee and any agent
of the Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor, the Master
Servicer, the Special Servicer, the Initial Purchasers and the Underwriters in
banking transactions, with the same rights it would have if it were not Trustee
or such agent, as the case may be.
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification. (a) On each Distribution Date, prior to the distribution of
amounts to the Certificateholders, the Trustee shall be entitled to pay itself
the Trustee Fee as reasonable compensation from amounts remitted to the
Lower-Tier Distribution Account (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties of the Trustee
hereunder at the Trustee Fee Rate.
(b) In the event that the Trustee assumes the servicing
responsibilities of the Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the
Master Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the
case may be, would have been entitled (other than the rights of the Special
Servicer to receive any Workout Fee specified in Section 3.12(c) in the event
that the Special Servicer is terminated).
(c) The Trustee shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable expenses, disbursements and advances incurred
or made by the Trustee pursuant to and in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), which, to the extent not previously paid pursuant to Section
3.06(d), the Trustee will be entitled to withdraw from the Distribution
Accounts prior to the distribution to Certificateholders to the extent set
forth herein and to the extent such payments are "unanticipated expenses
incurred by the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(iii) except any such expense, disbursement or advance as may
arise from its negligence or bad faith; provided, however, that, subject to
the last paragraph of Section 8.01, the Trustee shall not refuse to perform
any of its duties hereunder solely as a result of the failure to be paid the
Trustee Fee and the Trustee's expenses. The term "unanticipated expenses
incurred by the REMIC" shall include any fees, expenses and disbursement of
any separate Trustee or co-Trustee appointed hereunder, only to the extent
such fees, expenses and disbursements were not reasonably anticipated as of
the Closing Date and are attributable to the Lower-Tier REMIC or the
Upper-Tier REMIC or the Grantor Trust and the losses, liabilities, damages,
claims or expenses (including reasonable attorneys' fees) incurred or
advanced by an Indemnified Party in connection with any litigation arising
out of this Agreement attributable to the Lower-Tier REMIC or the Upper-Tier
REMIC or the Grantor Trust, including, without limitation, under Section
2.03, Section 3.10, the third paragraph of Section 3.11, Section 4.05 and
Section 7.01.
The Master Servicer and the Special Servicer covenant and agree to
pay or reimburse the Trustee for the reasonable expenses, disbursements and
advances incurred or made by the Trustee in connection with any transfer of the
servicing responsibilities of the Master Servicer or the Special Servicer,
respectively, hereunder, pursuant to or otherwise arising from the resignation
or removal of the Master Servicer or Special Servicer (except in the case of
removal of the Special Servicer without cause), as applicable, in accordance
with any of the provisions of this Agreement (and including the reasonable fees
and expenses and disbursements of its counsel and all other persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from the negligence or bad faith of the Trustee.
(d) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Master Servicer and the Special Servicer (each,
in such context, an "Indemnifying Party") shall indemnify the Trustee and its
Affiliates and each of the directors, officers, employees and agents of the
Trustee and its Affiliates (each, in such context, an "Indemnified Party"),
and hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that the
Indemnified Party may sustain in connection with this Agreement (including,
without limitation, reasonable fees and disbursements of counsel incurred by
the Indemnified Party in any action or proceeding between the Indemnifying
Party and the Indemnified Party or between the Indemnified Party and any
third party or otherwise) related to each such Indemnifying Party's
respective willful misconduct, bad faith, fraud or negligence in the
performance of each of its respective duties hereunder or by reason of
reckless disregard of its respective obligations and duties hereunder
(including in the case of the Master Servicer, any agent of the Master
Servicer or sub-servicer).
(e) The Trust Fund shall indemnify each Indemnified Party from,
and hold it harmless against, any and all losses, liabilities, damages,
claims or unanticipated expenses (including, without limitation, reasonable
fees and disbursements of counsel incurred by the Indemnified Party in any
action or proceeding between the Indemnifying Party and the Indemnified Party
or between the Indemnified Party and any third party or otherwise) arising in
respect of this Agreement, the Mortgage Loans or the Certificates other than
(i) those resulting from the negligence, fraud, bad faith or willful
misconduct of the Indemnified Party and (ii) those as to which such
Indemnified Party is entitled to indemnification pursuant to Section 8.05(d).
The right of reimbursement of the Indemnified Parties under this Section
8.05(e) shall be senior to the rights of all Certificateholders.
(f) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee, as the case may be, regarding rights
accrued prior to such resignation or removal and (with respect to any acts or
omissions during its respective tenures) the resignation, removal or
termination of the Master Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar or the Custodian.
(g) This Section 8.05 shall be expressly construed to include, but
not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate
to any environmental law or environmental matter.
(h) The Trustee (the "Indemnifying Party") shall indemnify the
Depositor, the Master Servicer and the Special Servicer and their respective
Affiliates and each of the directors, officers, employees and agents of the
Master Servicer and the Special Servicer and their respective Affiliates
(each, in such context, an "Indemnified Party"), and hold each of them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that the Indemnified Party
may sustain in connection with this Agreement (including, without limitation
reasonable fees and disbursements of counsel incurred by the Indemnified
Party in any action or proceeding between the Indemnifying Party and the
Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to the Indemnifying Party's willful misconduct, bad faith,
fraud or negligence in the performance of its duties hereunder or by reason
of reckless disregard of its obligations and duties hereunder.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times (i) be a corporation or association organized and
doing business under the laws of any state or the United States of America, (ii)
be authorized under such laws to exercise corporate trust powers and to accept
the trust conferred under this Agreement, (iii) have a combined capital and
surplus of at least $50,000,000, (iv) have its long-term unsecured debt
obligations rated at least "A+" by S&P and Fitch, and have its short-term
unsecured debt obligations rated at least "A-1" by S&P or, in each case, such
other ratings acceptable to the Rating Agencies, (v) be subject to supervision
or examination by federal or state authority and shall not be an Affiliate of
the Master Servicer (except during any period when the Trustee has assumed the
duties of the Master Servicer pursuant to Section 7.02) and (vi) not be a
Prohibited Party. If a corporation or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If the place of business from which the Trustee administers the
Trust Fund is a state or local jurisdiction that imposes a tax on the Trust Fund
or the net income of any Trust REMIC (other than a tax corresponding to a tax
imposed under the REMIC Provisions) the Trustee shall elect either to (i) resign
immediately in the manner and with the effect specified in Section 8.07, (ii)
pay such tax and continue as Trustee or (iii) administer the Trust Fund from a
state and local jurisdiction that does not impose such a tax. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Trustee, the Depositor, the Master Servicer, the
Special Servicer and each Rating Agency. Upon such notice of resignation from
the Trustee, the Master Servicer shall promptly appoint a successor trustee, the
appointment of which is subject to the requirements contained in Section 8.06.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee (or of its property) shall be appointed,
or any public officer shall take charge or control of the Trustee (or of its
property or affairs) for the purpose of rehabilitation, conservation or
liquidation, then the Depositor or the Master Servicer may remove the Trustee
and the Depositor or the Master Servicer shall promptly appoint a successor
trustee by written instrument, which shall be delivered to the Trustee so
removed and to the successor trustee.
The Holders of Certificates entitled to at least a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in seven originals, signed by such Holders
or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the Master
Servicer and Special Servicer, one complete set to the Trustee so removed, and
one complete set to the successor trustee.
In addition, if the Trustee is terminated without cause, the
terminating party shall pay all of the expenses of the Trustee necessary to
affect the transfer of its responsibilities to the successor trustee.
In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts accrued or
owing to it under this Agreement, plus interest at the Advance Rate on all such
amounts until received to the extent such amounts bear interest as provided in
this Agreement, with respect to periods prior to the date of such termination or
removal).
Section 8.08 Successor Trustee. (a) Any successor trustee shall
execute, acknowledge and deliver to the Depositor, the Master Servicer and to
the predecessor Trustee, as the case may be, instruments accepting their
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein, provided that such
successor trustee shall satisfy the requirements contained in Section 8.06. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor trustee appointed pursuant to this Agreement
shall satisfy the eligibility requirements set forth in Section 8.06 hereof.
Section 8.09 Merger or Consolidation of Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 8.06, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Fund or property securing the same may at the time be located, the
Depositor and the Trustee acting jointly shall have the power and shall execute
and deliver all instruments to appoint one or more Persons approved by the
Trustee to act (at the expense of the Trustee) as co-Trustee or co-Trustees,
jointly with the Trustee, or separate Trustee or separate Trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity, such title to the Trust Fund, or any part thereof, and, subject to the
other provisions of this Section 8.10, such powers, duties, obligations, rights
and trusts as the Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-Trustee or separate Trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. No co-Trustee or
separate Trustee hereunder shall be required to meet the terms of eligibility as
a successor Trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-Trustee(s) or separate Trustee(s) shall be
required under Section 8.08 hereof.
In the case of any appointment of a co-Trustee or separate Trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate Trustee or co-Trustee
jointly (it being understood that such separate Trustee or co-Trustee is not
authorized to act separately without the Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate Trustee or co-Trustee solely at the direction of the Trustee.
No Trustee under this Agreement shall be personally liable by reason
of any act or omission of any other Trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate Trustee or co-Trustee, or if the separate Trustee or
co-Trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate Trustee or co-Trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Article VIII. Every such instrument shall be filed with the Trustee.
Each separate Trustee and co-Trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. In no
event shall any such separate Trustee or co-Trustee be entitled to any provision
relating to the conduct of, affecting the liability of or affording protection
to such separate Trustee or co-Trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate Trustee or co-Trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate Trustee or co-Trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
ARTICLE IX
TERMINATION
Section 9.01 Termination. (a) The respective obligations and
responsibilities of the Master Servicer, the Special Servicer, the Depositor and
the Trustee created hereby with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as hereinafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders and the Serviced Companion Loan
Noteholders of all amounts held by or on behalf of the Trustee and the Master
Servicer, as the case may be, required hereunder to be so paid on the
Distribution Date following the earlier to occur of (i) the purchase of the
Mortgage Loans and all other property held by the Trust Fund in accordance with
Section 9.01(c); (ii) the exchange by the Sole Certificateholder of its
Certificates for the Mortgage Loans in accordance with Section 9.01(g) and (iii)
the later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and disposition
pursuant to this Agreement of the last asset held by the Trust Fund; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of twenty-one years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the United Kingdom, living on the date hereof.
For purposes of this Section 9.01, the Sole Certificateholder shall
have the first option to terminate the Trust Fund, pursuant to subsection (g),
and then the Certificateholder owning a majority of the Percentage Interests in
the Controlling Class, the Master Servicer and the Special Servicer, in that
order, pursuant to subsection (c).
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC
shall be terminated and the assets of the Trust Fund shall be sold or
otherwise disposed of in connection therewith, only pursuant to a "plan of
complete liquidation" within the meaning of Code Section 860F(a)(4)(A)
providing for the actions contemplated by the provisions hereof and pursuant
to which the applicable Notice of Termination is given, and requiring that
the Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC shall terminate
on a Distribution Date occurring not more than 90 days following the date of
adoption of the plan of complete liquidation. For purposes of this Section
9.01(b), the Notice of Termination given pursuant to Section 9.01(c) shall
constitute the adoption of the plan of complete liquidation as of the date
such notice is given, which date shall be specified by the Master Servicer in
the final federal income tax returns of the Upper-Tier REMIC and the
Lower-Tier REMIC. Notwithstanding the termination of the Lower-Tier REMIC or
the Upper-Tier REMIC or the Trust Fund, the Trustee shall be responsible for
filing the final Tax Returns for each such REMIC and for the Grantor Trust
for the period ending with such termination, and shall retain books and
records with respect to such REMICs and the Grantor Trust for the same period
of retention for which it maintains its own tax returns or such other
reasonable period. The Trustee shall sign all Tax Returns and other reports
required by this Section.
(c) The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Master Servicer and if the Master Servicer does
not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Master
Servicer any time on or after the Early Termination Notice Date specifying
the Anticipated Termination Date, by purchasing on such date all, but not
less than all, of the Mortgage Loans then included in the Trust Fund, and the
Trust's interest in all property acquired in respect of any Mortgage Loan, at
a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date (less any P&I Advances previously
made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of each
Mortgage Loan (including any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the Mortgage Rate
to the last day of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on account of interest);
and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Anticipated Termination Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In the event that the Certificateholder owning a majority of the
Percentage Interests in the Controlling Class, the Master Servicer or the
Special Servicer purchases all of the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining in the Trust Fund in accordance with
this Section 9.01(c), the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Master Servicer or the Special Servicer,
as applicable, shall deposit in the Lower-Tier Distribution Account, not later
than the Servicer Remittance Date relating to the Anticipated Termination Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Collection Account). In addition, the Master Servicer shall transfer to
the Trustee for deposit in the Lower-Tier Distribution Account all amounts
required to be transferred thereto on the Servicer Remittance Date from the
Collection Account, together with any other amounts on deposit in the Collection
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, the Trustee shall, release or cause to
be released to the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Master Servicer or the Special Servicer,
as applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
such purchasing party as shall be necessary to effectuate transfer of the
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with this Article IX.
As a condition to the purchase of the assets of the Trust Fund
pursuant to this Section 9.01(c), the purchaser shall deliver to the Trustee an
Opinion of Counsel, which shall be at the expense of such purchaser, stating
that such termination will be a "qualified liquidation" under Section
860F(a)(4)(A) of the Code. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to this
Section 9.01(c) shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to this subsection (c).
(d) If the Trust Fund has not been previously terminated pursuant
to subsection (c) of this Section 9.01, the Trustee shall determine as soon
as practicable the Distribution Date on which the Trustee reasonably
anticipates, based on information with respect to the Mortgage Loans
previously provided to it, that the final distribution will be made (i) to
the Holders of outstanding Regular Certificates, and to the Trustee in
respect of outstanding Lower-Tier Regular Interests, notwithstanding that
such distribution may be insufficient to distribute in full the Certificate
Balance or Lower-Tier Principal Balance of each Class of Certificates or
Lower-Tier Regular Interest, respectively, together with amounts required to
be distributed on such Distribution Date pursuant to Section 4.01(a), (b), or
(c) and (ii) if no such Classes of Certificates are then outstanding, to the
Holders of the Class LR Certificates of any amount remaining in the
Collection Account or the Lower-Tier Distribution Account, and to the Holders
of the Class R Certificates of any amount remaining in the Upper-Tier
Distribution Account.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Trustee to affected Certificateholders
with a copy to the Master Servicer and each Rating Agency at their addresses
shown in the Certificate Registrar as soon as practicable after the Trustee
shall have received, given or been deemed to have received a Notice of
Termination but in any event not more than 30 days, and not less than ten
days, prior to the Anticipated Termination Date. The notice mailed by the
Trustee to affected Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to Certificateholders will
be made only upon presentation and surrender of Certificates at the office
of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of
the failure of any Certificateholders to tender their Certificates shall be
set aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given
pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining Certificateholders, at
their last addresses shown in the Certificate Register, to surrender their
Certificates for cancellation in order to receive, from such funds held, the
final distribution with respect thereto. If within one year after the second
notice any Certificate shall not have been surrendered for cancellation, the
Trustee may, directly or through an agent, take appropriate steps to contact
the remaining Certificateholders concerning surrender of their Certificates.
The costs and expenses of maintaining such funds and of contacting
Certificateholders shall be paid out of the assets which remain held. If
within two years after the second notice any Certificates shall not have been
surrendered for cancellation, the Paying Agent shall pay to the Trustee all
amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee hereunder and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with this Section 9.01. Any amounts
remaining in the Grantor Trust Distribution Account representing Excess
Interest shall be distributed to the Class S Certificates.
(g) Following the date on which the aggregate Certificate Balance
of the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A,
Class A-M, Class A-J, Class B and Class C Certificates is reduced to zero,
the Sole Certificateholder shall have the right to exchange all of its
Certificates (other than the Class S, Class R and Class LR Certificates),
including the Class X Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to the Non-Serviced Mortgage Loan) remaining in the
Trust Fund as contemplated by clause (ii) of Section 9.01(a) by giving
written notice to all the parties hereto no later than 60 days prior to the
anticipated date of exchange. In the event that the Sole Certificateholder
elects to exchange all of its Certificates (other than the Class S, Class R
and Class LR Certificates), including the Class X Certificates, for all of
the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to the Non-Serviced
Mortgage Loan) remaining in the Trust Fund in accordance with the preceding
sentence, such Sole Certificateholder, not later than the Distribution Date
on which the final distribution on the Certificates is to occur, shall
deposit in the Collection Account an amount in immediately available funds
equal to all amounts due and owing to the Depositor, the Master Servicer, the
Special Servicer and the Trustee hereunder through the date of the
liquidation of the Trust Fund that may be withdrawn from the Collection
Account, or an escrow account acceptable to the respective parties hereto,
pursuant to Section 3.06(b) or that may be withdrawn from the Distribution
Accounts pursuant to Section 3.06(a), but only to the extent that such
amounts are not already on deposit in the Collection Account. In addition,
the Master Servicer shall transfer all amounts required to be transferred to
the Trustee for deposit in the Lower-Tier Distribution Account, as
applicable, on such Servicer Remittance Date from the Collection Account
pursuant to Section 3.05. Upon confirmation that such final deposits have
been made and following the surrender of all its Certificates (other than the
Class S, Class R and Class LR Certificates) on the final Distribution Date,
the Trustee shall, upon receipt of a Request for Release from the Master
Servicer, release or cause to be released to the Sole Certificateholder or
any designee thereof, the Mortgage Files for the remaining Mortgage Loans and
shall execute all assignments, endorsements and other instruments furnished
to it by the Sole Certificateholder as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties (or the Trust Fund's
beneficial interest in a Mortgaged Property acquired with respect to the
Non-Serviced Mortgage Loan) remaining in the Trust Fund, and the Trust Fund
shall be liquidated in accordance with this Article IX. The remaining
Mortgage Loans and REO Properties (or the Trust Fund's beneficial interest in
a Mortgaged Property acquired with respect to the Non-Serviced Mortgage Loan)
are deemed distributed to the Sole Certificateholder in liquidation of the
Trust Fund pursuant to this Article IX. Solely for federal income tax
purposes, the Sole Certificateholder shall be deemed to have purchased the
assets of the Lower-Tier REMIC for an amount equal to the remaining
Certificate Balance of its Certificates (other than the Class S, Class R and
Class LR Certificates), plus accrued, unpaid interest with respect thereto,
and the Trustee shall credit such amounts against amounts distributable in
respect of the Lower-Tier Regular Interests and such Certificates.
ARTICLE X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent of the Parties; Reasonableness. Except with
respect to Section 10.08, Section 10.11, Section 10.13, Section 10.14, Section
10.15, Section 10.16 and Section 10.17 the parties hereto acknowledge and agree
that the purpose of Article X of this Agreement is to facilitate compliance by
the Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Depositor nor the Trustee shall
exercise its rights to request delivery of information or other performance
under these provisions other than in reasonable good faith, or for purposes
other than compliance with the Securities Act, the Exchange Act, the
Xxxxxxxx-Xxxxx Act and, in each case, the rules and regulations of the
Commission thereunder. The parties to this Agreement acknowledge that
interpretations of the requirements of Regulation AB may change over time due to
interpretive guidance provided by the Commission or its staff and agree to
comply with reasonable requests made by the Depositor or the Trustee in
reasonable good faith for delivery of information under these provisions on the
basis of such evolving interpretations of Regulation AB. In connection with the
Deutsche Mortgage & Asset Receiving Corporation, Series COMM 2006-C7
transaction, subject to the preceding sentence, each of the parties to this
agreement shall cooperate fully with the Depositor and the Trustee, as
applicable, to deliver or make available to the Depositor or the Trustee, as
applicable (including any of their assignees or designees), any and all
information in its possession and necessary in the reasonable good faith
determination of the Depositor or the Trustee, as applicable, to permit the
Depositor to comply with the provisions of Regulation AB, together with such
disclosure relating to the Master Servicer, the Special Servicer and the
Trustee, as applicable, and any Servicing Function Participant, or the Servicing
of the Mortgage Loans, reasonably believed by the Depositor or the Trustee, as
applicable, in good faith to be necessary in order to effect such compliance.
Each party to this Agreement shall have a reasonable period of time to comply
with any written request made under this Section 10.01, but in any event, shall,
upon reasonable advance written request, provide information in sufficient time
to allow the Depositor or the Trustee, as applicable, to satisfy any related
filing requirements.
Section 10.02 [Reserved]
Section 10.03 Information to be Provided by the Master Servicer and
the Special Servicer. (a) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, (in addition to any requirements contained in
Section 10.09) in connection with the succession to the Master Servicer and
Special Servicer or any Servicing Function Participant (if such Servicing
Function Participant is a servicer as contemplated by Item 1108(a)(2) of
Regulation AB) as servicer or Sub-Servicer under this Agreement by any Person
(i) into which the Master Servicer and Special Servicer or such Servicing
Function Participant may be merged or consolidated, (ii) which may be appointed
as a sub-servicer by the Master Servicer or Special Servicer, or (iii) that is
appointed as a successor Master Servicer or successor Special Servicer pursuant
Section 7.02, the Master Servicer or the Special Servicer (with respect to the
foregoing clauses (i) and (ii)) or the successor Master Servicer or the
successor Special Servicer (with respect to the foregoing clause (iii)) shall
provide to the Depositor, at least 5 calendar days (other than a succession or
appointment pursuant to Section 7.01(b) or Section 7.01(c) for which notice
shall be delivered as reasonably practicable) prior to the effective date of
such succession or appointment as long as such disclosure prior to such
effective date would not be violative of any applicable law or confidentiality
agreement, otherwise immediately following such effective date, but in no event
later than the time required pursuant to Section 10.09, (x) written notice to
the Trustee and the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Trustee and the
Depositor, all information relating to such successor reasonably requested by
the Depositor so that it may comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any Class of Certificates.
Section 10.04 Information to be Provided by the Trustee. (a) For so
long as the Trust is subject to the reporting requirements of the Exchange Act,
(in addition to any requirements contained in Section 10.09) in connection with
the succession to the Trustee as Trustee or co-Trustee under this Agreement by
any Person (i) into which the Trustee may be merged or consolidated, (ii) which
may be appointed as a co-Trustee or separate Trustee pursuant to Section 8.10,
or (iii) that is appointed as a successor Trustee pursuant Section 8.08, the
Trustee (with respect to the foregoing clauses (i) and (ii)) or the successor
Trustee (with respect to the foregoing clause (iii)) shall provide to the
Depositor, at least 5 calendar days prior to the effective date of such
succession or appointment as long as such disclosure prior to such effective
date would not be violative of any applicable law or confidentiality agreement,
otherwise immediately following such effective date, but in no event later than
the time required pursuant to Section 10.09, (x) written notice to the Depositor
of such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor so that it may comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any Class of Certificates.
Section 10.05 Filing Obligations. The Master Servicer, the Special
Servicer and the Trustee shall and the Master Servicer, the Special Servicer and
the Trustee, as applicable, shall use commercially reasonable efforts to cause
each Servicing Function Participant (other than (x) any party to this Agreement
or (y) a Loan Seller Sub-Servicer) with which it has entered into a servicing
relationship with respect to the Mortgage Loans, to reasonably cooperate with
the Trustee and the Depositor in connection with the Trustee's and Depositor's
good faith efforts to satisfy the Trust's reporting requirements under the
Exchange Act.
Section 10.06 Form 10-D Filings. Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act) (the
"10-D Filing Deadline"), the Trustee shall prepare and file on behalf of the
Trust any Form 10-D required by the Exchange Act and the rules and regulations
of the Commission thereunder, in form and substance as required by the Exchange
Act and such rules and regulations. A duly authorized representative of the
Depositor shall sign each Form 10-D filed on behalf of the Trust. The Trustee
shall file each Form 10-D with a copy of the related Monthly Certificateholder's
Report attached thereto. Any disclosure in addition to the Monthly
Certificateholder's Report that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the paragraph immediately
below, be reported by the parties set forth on Schedule III and directed to the
Depositor and the Trustee for approval by the Depositor. The Trustee will have
no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure
which is to be reported by it as set forth on Schedule III) absent such
reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, within 5 calendar days after the related Distribution Date,
(i) the parties listed on Schedule III hereto shall be required to provide to
the Trustee and the Depositor, to the extent a Servicing Officer or Responsible
Officer, as the case may be, thereof has actual knowledge (other than Item 1117
of Regulation AB as to such party which shall be reported if actually known by
any Servicing Officer or Responsible Officer, as the case may be or any lawyer
in the in-house legal department of such party), in XXXXX-compatible format (to
the extent available to such party in such format), or in such other format as
otherwise agreed upon by the Trustee and the Depositor and such party, the form
and substance of the Additional Form 10-D Disclosure described on Schedule III
applicable to such party, (ii) include with such Additional Form 10-D
Disclosure, an Additional Disclosure Notification in the form attached hereto as
Exhibit V and (iii) the Trustee shall, at any time prior to filing the related
Form 10-D, provide prompt notice to the Depositor to the extent that the Trustee
is notified of an event reportable on Form 10-D for which it has not received
the necessary Additional Form 10-D Disclosure from the applicable party. No
later than the 7th calendar day after the Distribution Date, the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D; provided that if
the Trustee does not receive a response from the Depositor by such time the
Depositor will be deemed to have consented to the inclusion of such Additional
Form 10-D Disclosure. Other than to the extent provided for in clause (iii)
above, the Trustee has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Schedule III of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-D Disclosure information. The Depositor will be responsible for any
reasonable fees assessed and any expenses incurred by the Trustee in connection
with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review and approval;
provided that the Trustee shall use its reasonable best efforts to provide such
copy to the Depositor by the 3rd calendar day prior to the 15th calendar day
after the Distribution Date. No later than the end of business on the 13th
calendar day after the related Distribution Date, the Depositor shall notify the
Trustee in writing (which may be furnished electronically) of any charges to or
approval of such Form 10-D, and no later than the end of business on the 13th
calendar day after the related Distribution Date, a duly authorized
representative of the Depositor shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Trustee. The Trustee shall file such
Form 10-D, upon signature thereof as provided in Section 10.16, not later than
(i) 5:30 pm (New York City time) on the 15th calendar day after the related
Distribution Date or (ii) such other time as the Depositor and the Trustee
mutually agree is permitted by the Commission for the filing such Form 10-D. If
a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to
be amended, the Trustee will follow the procedures set forth in Section
10.10(b). After filing with the Commission, the Trustee shall, pursuant to
Section 4.02(c), make available on its internet website a final executed copy of
each Form 10-D prepared and filed by the Trustee. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
10.06 related to the timely preparation and filing of Form 10-D is contingent
upon such parties observing all applicable deadlines in the performance of their
duties under this Section 10.06. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare or file such Form 10-D where such failure results from the
Trustee's inability or failure to receive on a timely basis any information from
any other party hereto needed to prepare, arrange for execution or file such
Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 5th calendar day after the related Distribution Date
during any year in which the Trust is required to file a Form 10-D if the answer
to the questions should be "no"; provided, however, that if the failure of the
Depositor to have filed such required reports arises in connection with the
securitization contemplated by this Agreement, the Trustee shall be deemed to
have notice of such failure (only with respect to Exchange Act reports prepared
or required to be prepared and filed by the Trustee) without being notified by
the Depositor; provided, further, that in connection with the delivery of any
notice contemplated by this sentence, the Depositor may instruct the Trustee
that such notice shall be effective for a period (not to exceed 12 months) from
the date of such notice, in which case no further notice from the Depositor
shall be required during such specified period. The Trustee shall be entitled to
rely on such representations in preparing, executing and/or filing any Form
10-D.
Section 10.07 Form 10-K Filings. Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal
year for the Trust ends on December 31st of each year), commencing in March
2007, the Trustee shall prepare and file on behalf of the Trust a Form 10-K, in
form and substance as required by the Exchange Act. Each such Form 10-K shall
include the following items, in each case to the extent they have been delivered
to the Trustee within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each applicable Certifying
Servicer, as described under Section 10.11;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for each applicable Reporting Servicer, as described
under Section 10.12, and (B) if any Reporting Servicer's report on
assessment of compliance with servicing criteria described under Section
10.12 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer's
report on assessment of compliance with servicing criteria described under
Section 10.12 is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation as to why such report
is not included;
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer, as described under Section 10.13, and (B) if
any registered public accounting firm attestation report described under
Section 10.13 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any such
registered public accounting firm attestation report is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation as to why such report is not included; and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 10.8.
Any disclosure or information in addition to (i) through (iv) above
that is required to be included on Form 10-K ("Additional Form 10-K Disclosure")
shall, pursuant to the paragraph immediately below, be reported by the parties
set forth on Schedule IV hereto to the Depositor and the Trustee and approved by
the Depositor, and the Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure (other
than such Additional Form 10-K Disclosure which is to be reported by it as set
forth on Schedule IV) absent such reporting and approval.
Not later than the end of each fiscal year for which the Trust is
required to file a Form 10-K, the Master Servicer, the Special Servicer and the
Trustee shall provide the other parties to this Agreement with written notice of
the name and address of each Servicing Function Participant retained by such
party.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, by March 1st (with a grace period through March 15th),
commencing in March 2007 (i) the parties listed on Schedule IV hereto shall be
required to provide to the Trustee and the Depositor, to the extent a Servicing
Officer or a Responsible Officer, as the case may be, thereof has actual
knowledge (other than with respect to Items 1117 and 1119 of Regulation AB as to
such party which shall be reported if actually known by any Servicing Officer or
any lawyer in the in-house legal department of such party), in XXXXX-compatible
format (to the extent available to such party in such format), or in such other
form as otherwise agreed upon by the Trustee and the Depositor and such party,
the form and substance of the Additional Form 10-K Disclosure described on
Schedule IV applicable to such party, (ii) include with such Additional Form
10-K Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit V and (iii) the Trustee shall, at any time prior to filing the
related Form 10-K, provide prompt notice to the Depositor to the extent that the
Trustee is notified of an event reportable on Form 10-K for which it has not
received the necessary Additional Form 10-K Disclosure from the applicable
party. No later than March 15th, the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K; provided that if the Trustee does not receive
a response from the Depositor by such time the Depositor will be deemed to have
consented to the inclusion of such Additional Form 10-K Disclosure. Other than
to the extent provided for in clause (iii) above, the Trustee has no duty under
this Agreement to monitor or enforce the performance by the parties listed on
Schedule IV of their duties under this paragraph or proactively solicit or
procure from such parties any Additional Form 10-K Disclosure information. The
Depositor will be responsible for any reasonable fees assessed and any expenses
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, on or prior to the 6th Business Day
prior to the 10-K Filing Deadline, the Trustee shall forward electronically a
copy of the Form 10-K to the Depositor for review and approval. Within three
Business Days after receipt of such copy, but no later than March 24th, the
Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes to or approved of such Form 10-K. No later than
5:00 p.m. New York City time on the 4th Business Day prior to the 10-K Filing
Deadline, a senior officer in charge of securitization of the Depositor shall
sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K
(with an original executed hard copy to follow by overnight mail) to the
Trustee. The Trustee shall file such Form 10-K, upon signature thereof as
provided in Section 10.16, not later than (i) 5:30 pm (New York City time) on
the 10-K Filing Deadline or (ii) such other time as the Depositor and the
Trustee mutually agree is permitted by the Commission for the filing such Form
10-K, of each year in which a report on Form 10-K is required to be filed by the
Trust. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K
needs to be amended, the Trustee will follow the procedures set forth in Section
10.10(b). After filing with the Commission, the Trustee shall, pursuant to
Section 4.02(c), make available on its internet website a final executed copy of
each Form 10-K prepared and filed by the Trustee. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
10.07 related to the timely preparation and filing of Form 10-K is contingent
upon such parties (and any Additional Servicer or Servicing Function
Participant) observing all applicable deadlines in the performance of their
duties under this Article X. The Trustee shall have no liability with respect to
any failure to properly prepare or file such Form 10-K resulting from the
Trustee's inability or failure to receive from any other party any information
needed to prepare, arrange for execution or file such Form 10-K on a timely
basis, not resulting from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports) and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee in
writing, no later than the 15th calendar day of March during any year in which
the Trust is required to file a Form 10-K if the answer to the questions should
be "no" ; provided, however, that if the failure of the Depositor to have filed
such required reports arises in connection with the securitization contemplated
by this Agreement, the Trustee shall be deemed to have notice of such failure
(only with respect to Exchange Act reports prepared or required to be prepared
and filed by the Trustee) without being notified by the Depositor; provided,
further, that in connection with the delivery of any notice contemplated by this
sentence, the Depositor may instruct the Trustee that such notice shall be
effective for a period (not to exceed 12 months) from the date of such notice,
in which case no further notice from the Depositor shall be required during such
specified period. The Trustee shall be entitled to rely on such representations
in preparing, executing and/or filing any Form 10-K.
Section 10.08 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a certification (the "Xxxxxxxx-Xxxxx Certification"), as set forth in
Exhibit Y attached hereto, required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. Each Reporting Servicer shall, and each Reporting Servicer
shall use commercially reasonable efforts to cause each Servicing Function
Participant (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer) with which it has entered into a servicing relationship with
respect to the Mortgage Loans, to provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March 1st (with a
grace period through March 15th) of each year in which the Trust is subject to
the reporting requirements of the Exchange Act, a certification (each, a
"Performance Certification"), in the form attached hereto as Exhibit M, O, P or
Q, as applicable, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors and
Affiliates (collectively with the Certifying Person, "Certification Parties")
can reasonably rely. The senior officer in charge of securitization of the
Depositor shall serve as the Certifying Person on behalf of the Trust. The
Certifying Person at the Depositor can be contacted at Deutsche Mortgage & Asset
Receiving Corporation at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxx, with a copy to Xxx Xxxxxx, Esq. If any Reporting Servicer is
terminated or resigns pursuant to the terms of this Agreement, or any applicable
sub-servicing agreement or primary servicing agreement, as the case may be, such
Reporting Servicer shall provide a Performance Certification to the Certifying
Person pursuant to this Section 10.08 with respect to the period of time it was
subject to this Agreement or the applicable sub-servicing agreement or primary
servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 10.11, (ii) annual report on
assessment of compliance with servicing criteria provided pursuant to Section
10.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 10.13.
If any Serviced Companion Loan is deposited into a commercial
mortgage securitization that is subject to the Exchange Act reporting
requirements, each Reporting Servicer that services such Serviced Companion Loan
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with
respect to an Other Securitization a certification materially the same in form
and substance to the Performance Certification (which shall address the matters
contained in the Performance Certification, but solely with respect to the
related Serviced Companion Loan), upon which such certifying person, the entity
for which the certifying person acts as an officer, and such entity's officers,
directors and Affiliates can reasonably rely. With respect to any Non-Serviced
Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling Agreement, the
Master Servicer will use commercially reasonable efforts to procure a
Xxxxxxxx-Xxxxx back-up certification from the Non-Serviced Mortgage Loan Service
Providers, in form and substance similar to a Performance Certification.
Section 10.09 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure (the "8-K Filing Deadline")
under Form 8-K (each a "Reportable Event"), to the extent it receives the Form
8-K Disclosure Information described below, the Trustee shall prepare and, at
the direction of the Depositor, file on behalf of the Trust any Form 8-K, as
required by the Exchange Act, provided that the Depositor shall file the initial
Form 8-K in connection with the issuance of the Certificates. Any disclosure or
information related to a Reportable Event or that is otherwise required to be
included on Form 8-K ("Form 8-K Disclosure Information") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule V
to which such Reportable Event relates and such Form 8-K Disclosure Information
shall be delivered to the Depositor and the Trustee and approved by the
Depositor. The Trustee will have no duty or liability for any failure hereunder
to determine or prepare any Form 8-K Disclosure Information (other than such
Form 8-K Disclosure Information which is to be reported by it as set forth on
Schedule V) absent such reporting and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, the parties listed on Schedule V hereto shall, to the extent a
Servicing Officer or a Responsible Officer, as the case may be, thereof has
actual knowledge, use their reasonable efforts to provide to the Depositor and
the Trustee within 1 Business Day after the occurrence of the Reportable Event,
but shall provide in no event later than noon (New York City time) on the 2nd
Business Day after the occurrence of the Reportable Event, the form and
substance of the Form 8-K Disclosure Information described on Schedule V as
applicable to such party, in XXXXX-compatible format (to the extent available to
such party in such format), or in such other format as otherwise agreed upon by
the Trustee and the Depositor and such party and accompanied by an Additional
Disclosure Notification in the form attached hereto as Exhibit V. The Depositor
will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Form 8-K Disclosure Information on Form 8-K by the end of
business on the 2nd Business Day after the Reportable Event; provided that if
the Trustee does not receive a response from the Depositor by such time as
required under this Agreement the Depositor will be deemed to have consented to
such Form 8-K Disclosure Information. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Schedule V of their duties under this paragraph or proactively solicit or
procure from such parties any Form 8-K Disclosure Information; provided that to
the extent that the Trustee is notified of such Reportable Event and it does not
receive the necessary Form 8-K Disclosure Information, it shall notify the
Depositor that it has not received such information and, provided, further, that
the limitation on liability provided by this sentence shall not be applicable if
the Reportable Event relates to the Trustee or any party that the Trustee has
engaged to perform its obligations under this Agreement. The Depositor will be
responsible for any reasonable fees assessed and any expenses incurred by the
Trustee in connection with including any Form 8-K Disclosure Information on Form
8-K pursuant to this paragraph.
After preparing the Form 8-K, the Trustee shall, no later than the
end of the Business Day (New York City time) on the 3rd Business Day after the
Reportable Event, forward electronically a copy of the Form 8-K to the Depositor
for review and approval and the Depositor shall promptly notify the Trustee in
writing (which may be furnished electronically) of any changes to the Form 8-K.
No later than noon on the 4th Business Day (New York City time) after the
Reportable Event, a duly authorized representative of the Depositor shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. The
Trustee shall file such Form 8-K, upon signature thereof as provided in Section
10.16, not later than (i) 5:30 pm (New York City time) on the 4th Business Day
following the reportable event or (ii) such other time as the Depositor and the
Trustee mutually agree is permitted by the Commission for the filing such Form
8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Trustee will follow the procedures set forth in Section
10.10(b). After filing with the Commission, the Trustee will, pursuant to
Section 4.02(c), make available on its internet website a final executed copy of
each Form 8-K prepared and filed by the Trustee. The parties to this Agreement
acknowledge that the performance by the Trustee of its duties under this Section
10.9 related to the timely preparation and filing of Form 8-K is contingent upon
such parties observing all applicable deadlines in the performance of their
duties under this Section 10.9. The Trustee shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare, arrange for execution and/or timely file such Form 8-K, where
such failure results from the Trustee's inability or failure to receive approved
Form 8-K Disclosure Information within the applicable timeframes set forth in
this Section 10.09 and not resulting from the Trustee's own negligence, bad
faith or willful misconduct (provided that to the extent that the Trustee is
notified of such Reportable Event and it does not receive the necessary Form 8-K
Disclosure Information, it will notify the Depositor that it has not received
such information and further provided that the limitation on liability provided
by this sentence shall not be applicable if the Reportable Event relates to the
Trustee or any party that the Trustee has engaged to perform its obligations
under this Agreement).
Section 10.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports. (a) On or before January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
shall prepare and file a Form 15 Suspension Notification relating to the
automatic suspension of reporting in respect of the Trust under the Exchange
Act. With respect to any reporting period occurring after the filing of Form 15,
the obligations of the parties to this Agreement under Sections 10.01, 10.03,
10.06, 10.07, 10.08 and 10.09 shall be suspended.
(b) If the Trustee is unable to timely file with the Commission all
or any required portion of any Form 8-K, Form 10-D or Form 10-K required to be
filed by this Agreement because required disclosure information either was not
delivered to it or was delivered to it after the delivery deadlines set forth in
this Agreement or for any other reason, the Trustee shall promptly notify (which
notice (which may be sent by fax or by email notwithstanding the provisions of
Section 11.04) shall include the identity of those Reporting Servicers who
either did not deliver such information or delivered such information to it
after the delivery deadlines set forth in this Agreement) the Depositor and each
Reporting Servicer that failed to make such delivery. In the case of Form 10-D
and Form 10-K, each such Reporting Servicer shall cooperate with the Depositor
and the Trustee to prepare and file a Form 12b-25 and a Form 10-D/A and Form
10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Trustee shall, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next Form 10-D that is required to be filed on
behalf of the Trust. In the event that any previously filed Form 8-K, Form 10-D
or Form 10-K needs to be amended, the Trustee shall notify the Depositor and
such other parties as needed and such parties shall cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by the
Depositor. The parties to this agreement acknowledge that the performance by the
Trustee of its duties under this Section 10.10 related to the timely preparation
and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
is contingent upon the Master Servicer, the Special Servicer and the Depositor
performing their duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25 or
any amendments to Forms 8-K, Form 10-D or Form 10-K, where such failure results
from the Trustee's inability or failure to receive, on a timely basis, any
information from any other party hereto needed to prepare, arrange for execution
or file such Form 15, Form 12b-25 or any amendments to Form 8-K, Form 10-D or
Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 10.11 Annual Compliance Statements. The Master Servicer, the
Special Servicer, the Trustee, any Additional Servicer and each Servicing
Function Participant (if such Servicing Function Participant is a servicer
contemplated by Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB) (each a
"Certifying Servicer") shall and the Master Servicer, the Special Servicer and
the Trustee shall use commercially reasonable efforts to cause each Additional
Servicer and each Servicing Function Participant (if such Servicing Function
Participant is a servicer contemplated by Item 1108(a)(2)(i), (ii) or (iii) of
Regulation AB) (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer) with which it has entered into a servicing relationship with
respect to the Mortgage Loans, to deliver to the Depositor and the Trustee on or
before March 1 (subject to a grace period through March 15th), commencing in
March 2007, an Officer's Certificate stating, as to the signer thereof, that (A)
a review of such Certifying Servicer's activities during the preceding calendar
year or portion thereof and of such Certifying Servicer's performance under this
Agreement, or the applicable sub-servicing agreement or primary servicing
agreement in the case of an Additional Servicer, has been made under such
officer's supervision and (B) that, to the best of such officer's knowledge,
based on such review, such Certifying Servicer has fulfilled all its obligations
under this Agreement, or the applicable sub-servicing agreement or primary
servicing agreement in the case of an Additional Servicer, in all material
respects throughout such year or portion thereof, 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. Promptly
after receipt of each such Officer's Certificate, the Depositor shall have the
right to review such Officer's Certificate and, if applicable, consult with each
Certifying Servicer, as applicable, as to the nature of any failures by such
Certifying Servicer, in the fulfillment of any of the Certifying Servicer's
obligations hereunder or under the applicable sub-servicing agreement. None of
the Certifying Servicers or any Additional Servicer or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such Officer's Certificate until April 15, in any given year so long as
it has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
If any Serviced Companion Loan is deposited into an Other
Securitization which is subject to the reporting requirements of the Exchange
Act, each Certifying Servicer shall provide, if requested by a party to the
Other Pooling and Servicing Agreement, an Officer's Certificate as described in
this Section. With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling Agreement, the Master Servicer will use
commercially reasonable efforts to procure an Officer's Certificate as described
in this Section from the Non-Serviced Mortgage Loan Service Providers in form
and substance similar to the Officer's Certificate described in this Section.
Section 10.12 Annual Reports on Assessment of Compliance with
Servicing Criteria. By March 1st (subject to a grace period through March 15th)
of each year, commencing in March 2007, the Master Servicer, the Special
Servicer (regardless of whether the Special Servicer has commenced special
servicing of any Mortgage Loan), the Trustee, and each Servicing Function
Participant (each, a "Reporting Servicer"), each at its own expense, shall
furnish, (and each Reporting Servicer, as applicable, shall use commercially
reasonable efforts to cause, by March 1st (subject to grace period through March
15th), each Servicing Function Participant (other than (x) a party to this
Agreement or (y) a Loan Seller Sub-Servicer) with which it has entered into a
servicing relationship with respect to the Mortgage Loans to the Trustee and the
Depositor a report on an assessment of compliance with the Relevant Servicing
Criteria with respect to commercial mortgage backed securities transactions
taken as a whole involving such party that contains (A) a statement by such
Reporting Servicer of its responsibility for assessing compliance with the
Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used
the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such Reporting Servicer's assessment of compliance with the
Relevant Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
10.07, including, if there has been any material instance of noncompliance with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period.
No later than the end of each fiscal year for the Trust for which a
Form 10-K is required to be filed, the Master Servicer, the Special Servicer and
Trustee shall each forward to the Trustee and the Depositor the name and contact
information of each Servicing Function Participant engaged by it and what
Relevant Servicing Criteria will be addressed in the report on assessment of
compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Special Servicer, the Trustee and each Servicing Function
Participant submit their respective assessments by March 1st (subject to grace
period through March 15th), as applicable, to the Trustee, each such party shall
also at such time, if it has received the assessment (and attestation pursuant
to Section 10.13) of each Servicing Function Participant engaged by it, include
such assessment (and attestation) in its submission to the Trustee.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Trustee and any Servicing Function Participant as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by the Master
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Schedule II and notify the Depositor of any exceptions. None of the Master
Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such reports until April 15 in any given year so long as it has received
written confirmation from the Depositor that a Form 10-K is not required to be
filed in respect of the Trust for the preceding calendar year.
The parties hereto acknowledge that a material instance of
noncompliance with the Relevant Servicing Criteria reported on an assessment of
compliance pursuant to this Section 10.12 by the Master Servicer, the Special
Servicer or the Trustee shall not, as a result of being so reported, in and of
itself, constitute a breach of such parties' obligations, as applicable, under
this Agreement unless otherwise provided for in this Agreement.
If any Serviced Companion Loan is deposited into an Other
Securitization that is subject to the reporting requirements of the Exchange
Act, each of the Master Servicer, the Special Servicer (regardless of whether
the Special Servicer has commenced special servicing of any Mortgage Loan) and
the Trustee, each at its own expense, shall furnish, and each of the preceding
parties, as applicable, shall use commercially reasonable efforts to cause each
Servicing Function Participant (other than (x) any party to this Agreement or
(y) a Loan Seller Sub-Servicer) with which it has entered into a servicing
relationship with respect to the Mortgage Loans to furnish, each at its own
expense, if requested by a party to the Other Pooling and Servicing Agreement,
an annual report on assessment of compliance as described in this Section and an
attestation as described in Section 10.13. With respect to any Non-Serviced
Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling Agreement, the
Master Servicer will use commercially reasonable efforts to procure an annual
report on assessment of compliance as described in this Section and an
attestation as described in Section 10.13 from the Non-Serviced Mortgage Loan
Service Providers in form and substance similar to the annual report on
assessment of compliance described in this Section and the attestation described
in Section 10.13.
Section 10.13 Annual Independent Public Accountants' Servicing
Report. By March 1st (subject to a grace period through March 15th), of each
year, commencing in March 2007, each Reporting Servicer, each at its own
expense, shall use reasonable efforts to cause, and each Reporting Servicer, as
applicable, shall use commercially reasonable efforts to cause, by March 1
(subject to a 15 calendar day grace period), each Servicing Function Participant
(other than (x) a party to this Agreement or (y) a Loan Seller Sub-Servicer)
with which it has entered into a servicing relationship with respect to the
Mortgage Loans, to cause, each at its own expense), a registered public
accounting firm (which may also render other services to the Master Servicer,
the Special Servicer, the Trustee, such Servicing Function Participant, as the
case may be) and that is a member of the American Institute of Certified Public
Accountants to furnish a report to the Trustee and the Depositor to the effect
that (i) it has obtained a representation regarding certain matters from the
management of such Reporting Servicer, which includes an assessment from such
Reporting Servicer of its compliance with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such Reporting Servicer's compliance with
the Relevant Servicing Criteria was fairly stated in all material respects, or
it cannot express an overall opinion regarding such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria. If an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
Promptly after receipt of such report from each Reporting Servicer,
(i) the Depositor shall have the right to review the report and, if applicable,
consult with the related Reporting Servicer as to the nature of any material
instance of noncompliance by such Reporting Servicer with the Servicing Criteria
applicable to such person, as the case may be, in the fulfillment of any of such
Reporting Servicer's obligations hereunder or under any applicable sub-servicing
agreement or primary servicing agreement, and (ii) the Trustee shall confirm
that each assessment submitted pursuant to Section 10.12 is coupled with an
attestation meeting the requirements of this Section and notify the Depositor of
any exceptions. No Reporting Servicer shall be required to deliver, or to
endeavor to cause the delivery of, such reports until April 15 in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year.
Section 10.14 Exchange Act Reporting Indemnification. Each of the
Master Servicer, the Special Servicer and the Trustee shall indemnify and hold
harmless each Certification Party, the Depositor, their respective directors and
officers, and each other person who controls any such entity within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all expenses, losses, claims, damages and other liabilities,
including without limitation the costs of investigation, legal defense and any
amounts paid in settlement of any claim or litigation arising out of (i) the
failure to perform its obligations to the Depositor or Trustee under this
Article X by the time required after giving effect to any applicable grace
period or (ii) the failure of any Servicing Function Participant or Additional
Servicer retained by it (other than a Loan Seller Sub-Servicer) to perform its
obligations to the Depositor or Trustee under this Article X by the time
required after giving effect to any applicable grace period.
The Master Servicer, the Special Servicer and the Trustee shall use
commercially reasonable efforts to cause each Servicing Function Participant
(other than (x) any party to this Agreement or (y) a Loan Seller Sub-Servicer)
with which it has entered into a servicing relationship with respect to the
Mortgage Loans to indemnify and hold harmless each Certification Party from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses incurred by
such Certification Party arising out of a breach of its obligations to provide
any of the annual compliance statements or annual assessment of servicing
criteria or attestation reports pursuant to this Agreement, or the applicable
sub-servicing agreement or primary servicing agreement, as applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, each Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall and the Master Servicer, the
Special Servicer and the Trustee shall use reasonable efforts to cause each
Servicing Function Participant with which it has entered into a servicing
relationship (other than (x) a party to this Agreement or (y) any Loan Seller
Sub-Servicer) with respect to the Mortgage Loans to contribute to the amount
paid or payable to the Certification Party as a result of the losses, claims,
damages or liabilities of the Certification Party in such proportion as is
appropriate to reflect the relative fault of the Certification Party on the one
hand and the Performing Party on the other in connection with a breach of the
Performing Party's obligations pursuant to this Article X. The Master Servicer,
the Special Servicer and the Trustee shall use reasonable efforts to cause each
Servicing Function Participant (other than Loan Seller Sub-Servicers) with which
it has entered into a servicing relationship with respect to the Mortgage Loans
to agree to the foregoing indemnification and contribution obligations.
Section 10.15 Amendments. This Article X may be amended by the
written consent of all the parties hereto pursuant to Section 11.07 for purposes
of complying with Regulation AB and/or to conform to standards developed within
the commercial mortgage backed securities market without, in each case, any
Opinions of Counsel, Officer's Certificates, Rating Agency Confirmations or the
consent of any Certificateholder, notwithstanding anything to the contrary
contained in this Agreement; provided that no such amendment without
Certificateholder consent shall eliminate the reports or statements required
under Section 10.11 or Section 10.13.
Section 10.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods. (a) Each Form 8-K report, Form 10-D report and
Form 10-K report shall be signed by the Depositor in accordance with procedures
to be agreed upon by the Depositor and the Trustee. The signing party at the
Depositor can be contacted at Deutsche Mortgage & Asset Receiving Corporation at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, with a copy to
Xxx Xxxxxx, Esq.
(b) Notwithstanding anything in Section 11.04 to the contrary, any
notice required to be delivered to the Depositor under this Article X shall
be properly given if sent by facsimile to (000) 000-0000, Attention: Xxxxxx
Xxxx, with a copy to (000) 000-0000, Attention: Xxxx Xxxxx (or such other
number as the Depositor may instruct) and/or by email to Xxxxxx.Xxxx@xx.xxx,
with a copy to Xxxx.Xxxxx@xxx.xxx (or such other email address as the
Depositor may instruct).
(c) For the avoidance of doubt:
(i) Neither the Master Servicer nor the Special Servicer shall be
subject to a Master Servicer Event of Default or a Special Servicer Event
of Default, as applicable, pursuant to either the last clause of the
definition of Master Servicer Event of Default or the last clause of the
definition of Special Servicer Event of Default, as applicable, nor shall
any such party be deemed to not be in compliance under this Agreement,
during any grace period provided for in this Article X, provided, that if
any such party fails to comply with the delivery requirements of this
Article X by the expiration of any applicable grace period such failure
shall constitute a Master Servicer Event of Default or a Special Servicer
Event of Default, as applicable; and
(ii) Neither the Master Servicer nor the Special Servicer shall be
subject to a Master Servicer Event of Default or a Special Servicer Event
of Default, as applicable, pursuant to either the last clause of the
definition of Master Servicer Event of Default or the last clause of the
definition of Special Servicer Event of Default, as applicable, nor shall
any such party be deemed to not be in compliance under this Agreement, for
failing to deliver any item required under this Article X by the time
required hereunder with respect to any reporting period for which the
Trust is not required to file Exchange Act reports (which reporting
periods will include any occurring after the Trustee files the Form 15
relating to the automatic suspension of reporting in respect of the Trust
under the Exchange Act).
Section 10.17 Termination of the Trustee. (a) Notwithstanding
anything to the contrary contained in this Agreement, the Depositor may
immediately terminate the Trustee if the Trustee fails to comply with any of its
obligations under this Article X; provided that (a) such termination shall not
be effective until a successor trustee shall have accepted the appointment, (b)
the Trustee may not be terminated if it cannot perform its obligations due to
its failure to properly prepare or file on a timely basis any Form 8-K, Form
10-K or Form 10-D or any amendments to such forms or any Form 12b-25 where such
failure results from the Trustee's inability or failure to receive, within the
exact time frames set forth in this Agreement any information, approval,
direction or signature from any other party hereto needed to prepare, arrange
for execution or file any such Form 8-K, Form 10-K or Form 10-D or any
amendments to such forms or any form 12b-25 not resulting from its own
negligence, bad faith or willful misconduct, (c) if, following the Trustee's
failure to comply with any of such obligations under Sections 10.06, 10.07,
10.09, 10.11, 10.12 or 10.13 on or prior to the dates by which such obligations
are to be performed pursuant to, and as set forth in, such Sections the Trustee
subsequently complies with such obligations before the Depositor gives written
notice to it that it is terminated in accordance with this Section 10.17 and (d)
the Trustee may not be terminated if the Trustee's failure to comply does not
cause it 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 deadline for filing such
Form 8-K, Form 10-D or Form 10-K, then the Depositor shall cease to have the
right to terminate the Trustee under this Section 10.17 on the date on which
such Form 8-K, Form 10-D or Form 10-K is so filed.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.02 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, or entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, and
nothing herein set forth, or contained in the terms of the Certificates, shall
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; and no Certificateholder shall be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder or any Serviced Companion Loan Noteholder shall
have any right to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless
such Certificateholder or such Serviced Companion Loan Noteholder, as
applicable, previously shall have given to the Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also such Serviced Companion Loan Noteholder or the Certificateholders
representing Percentage Interests of at least 25% of each affected Class of
Certificates, as applicable, have (or in the case of the Serviced Companion Loan
Noteholder, has) made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and have (or in the case
of the Serviced Companion Loan Noteholder, has) offered to the Trustee such
reasonable security or indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of security or indemnity,
shall have failed or refused to institute any such action, suit or proceeding.
It is understood and intended, and expressly covenanted by the Serviced
Companion Loan Noteholder and by each Certificateholder with every other
Certificateholder and the Trustee, that no Serviced Companion Loan Noteholder or
one or more Certificateholder of any Class shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of Serviced Companion Loan Noteholder or the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Companion Loan Noteholder or Certificateholder, or
to enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Companion Loan Noteholders
and Holders of Certificates of such Class, as applicable. For the protection and
enforcement of the provisions of this Section, each and every Companion Loan
Noteholder, Certificateholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 11.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 11.04 Notices. Unless otherwise specified in this Agreement,
all demands, notices and communications hereunder shall be in writing, shall be
deemed to have been given upon receipt (except that notices to Holders of Class
R and Class LR Certificates or Holders of any Class of Certificates no longer
held through a Depository and instead held in registered, definitive form shall
be deemed to have been given upon being sent by first-class mail, postage
prepaid or by overnight courier) as follows:
If to the Trustee or Paying Agent, to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS), COMM 2006-C7
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
If to the Master Servicer, to:
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx Xxxxxx LLP
0000 Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No: (000) 000-0000
If to the Special Servicer, to:
CWCapital Asset Management LLC
000 00xx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx (COMM 2006-C7)
Telecopy No.: (000) 000-0000
with a copy to:
CWCapital Asset Management LLC
One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxxx Xxxx (COMM
2006-C7) Telecopy No.: (000) 000-0000
If to the German American Capital Corporation, to:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
If to General Electric Capital Corporation, as Mortgage Loan
Seller, to:
General Electric Capital Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Managing Director
Telecopy No.: (000) 000-0000
with copies to:
General Electric Capital Corporation
00000 Xxxxxx Xxxxxxx
Xxx Xxxx Xxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Managing Director
Telecopy No.: (000) 000-0000
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx XxXxxx
Counsel
Telecopy No.: (000) 000-0000
If to Bank of America, National Association, as Mortgage Loan
Seller, to:
Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. XxXxxx, Esq.
If to CWCapital Mortgage Securities III LLC, as Mortgage Loan
Seller, to:
CWCapital Mortgage Securities III LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
CWCapital Mortgage Securities III LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
If to the Underwriters, to:
Deutsche Bank Securities, Inc.
Commercial Mortgage-Backed Securities
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. XxXxxx, Esq.
If to any Certificateholder, to:
the address set forth in the Certificate Register,
If to the initial Controlling Class Representative
Cadim TACH, inc.
c/o CDP Capital Real Estate Advisors
CDP Capital Center, 0000 Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx
X-000
Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx
Attention: Corporate Secretary
with a copy to:
CWCapital Investments LLC
0000 Xxxxx Xxxxxx,
Xxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxx (COMM 2006-C7)
and a copy to:
CWCapital Investments LLC
000 00xx Xxxxxx XX, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxx Xxxxxxxxx (COMM 2006-C7),
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
Section 11.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then, to the extent permitted by applicable law,
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.06 Notice to the Depositor and Each Rating Agency. (a)
The Trustee shall use its best efforts to promptly provide notice (and, in the
case of subsection (vii), promptly furnish or make available) to the Depositor,
the Underwriters, the Controlling Class Representative and each Rating Agency
with respect to each of the following of which a Responsible Officer of the
Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the merger, consolidation, resignation or termination of the
Master Servicer, the Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account, the
Serviced Whole Loan Collection Account, the Distribution Accounts, the
Interest Reserve Account, or the Excess Liquidation Proceeds Account; and
(vii) each report to Certificateholders described in Section 4.02,
Section 3.13 and Section 3.22.
(b) The Master Servicer shall promptly furnish to each Rating Agency
copies of the following:
(i) each of its annual statements as to compliance described in
Section 10.11;
(ii) each of its annual independent public accountants' servicing
reports described in Section 10.13;
(iii) a copy of each rent roll and each operating and other
financial statement and occupancy reports, to the extent such information
is required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03;
(iv) a copy of any notice with respect to a breach of a
representation or warranty with respect to any Mortgage Loan;
(v) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master Servicer;
(vi) any change in the lien priority of a Mortgage Loan;
(vii) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property;
(viii) any material damage to a Mortgaged Property; and
(ix) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to the Trust Fund,
a Mortgaged Property, a Borrower and a Specially Serviced Loan such information
as the Rating Agency and the Depositor shall reasonably request and which the
Trustee, the Master Servicer or the Special Servicer, can reasonably provide in
accordance with applicable law and without violating the terms of this Agreement
or any Loan Documents. The Rating Agencies shall not be charged any fee or
expense in connection therewith. Each party hereto shall send copies to the
Depositor of any information that it provided to any Rating Agency.
Notwithstanding anything to the contrary herein, nothing in this Section 11.06
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
(d) Notices to each Rating Agency shall be addressed as follows:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance Group
Telecopy: (000) 000-0000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance Group
Telecopy: (000) 000-0000
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
Section 11.07 Amendment. This Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus, the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or this Agreement or to correct or supplement any provisions herein or therein
which may be defective or inconsistent with any other provisions herein or
therein; (iii) to amend any provision hereof to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Certificates by each Rating Agency; and (iv) to amend or supplement a provision,
or to supplement any other provisions to the extent not inconsistent with the
provisions of this Agreement, or any other change which will not adversely
affect in any material respect the interests of any Certificateholder or
Serviced Companion Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or Serviced Companion Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the Grantor Trust
to fail to qualify as a grantor trust.
This Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the prior written consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby and each Serviced Companion Loan Noteholder
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or modifying in
any manner the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holders of
Certificates representing all of the Percentage Interests of the Class or
Classes affected thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of such Serviced
Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction under
this Agreement;
(iii) alter the Servicing Standard or obligations of the Master
Servicer or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or Classes
affected thereby and the consent of any affected Serviced Companion Loan
Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend this Agreement to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the qualification of the
Grantor Trust as a grantor trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any Serviced Companion Loan Noteholder.
In the event that neither the Depositor nor any successor thereto,
if any, is in existence, any amendment under this Section 11.07 shall be
effective with the consent of the Trustee, the Master Servicer and the Special
Servicer, in writing, and to the extent required by this Section 11.07, the
Certificateholders and Serviced Companion Loan Noteholders. Promptly after the
execution of any amendment, the Master Servicer shall forward to the Trustee and
the Special Servicer, and the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder, each Serviced Companion
Loan Noteholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders and, if applicable,
Serviced Companion Loan Noteholders, shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless the
Trustee has received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i), (ii) or (iii) of the first sentence of this
Section, then at the expense of the Trust Fund) to the effect that such
amendment is permitted hereunder and such amendment will not cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding, or cause the Grantor Trust to fail
to qualify as a grantor trust, or cause a tax to be imposed on the Trust Fund,
any such REMIC or the Grantor Trust.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Special Servicer and the Master Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in the first sentence of
this Section 11.07 (which do not modify or otherwise relate solely to the
obligations, duties or rights of the Trustee), then at the expense of the Trust
Fund) stating that the execution of such amendment is authorized or permitted by
this Agreement. The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement.
Notwithstanding any contrary provision contained in this Agreement,
no amendment shall be made to this Agreement which shall affect the obligations
of any Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
Section 11.08 Confirmation of Intent. It is the express intent of
the parties hereto that the conveyance of the Trust Fund (including the Mortgage
Loans) by the Depositor to the Trustee on behalf of Certificateholders as
contemplated by this Agreement and the sale by the Depositor of the Certificates
be, and be treated for all purposes as, a sale by the Depositor of the undivided
portion of the beneficial interest in the Trust Fund represented by the
Certificates. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Trust Fund by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the parties, the Trust Fund is held to
continue to be property of the Depositor then (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Trust Fund provided for herein shall be deemed to be a grant by the Depositor to
the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Depositor's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, any Serviced Whole Loan Collection Account,
the Distribution Accounts, the Interest Reserve Account, any REO Account and any
Excess Liquidation Proceeds Account whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee (or the
Custodian on its behalf) of Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 of the Delaware Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Master Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans or Serviced Whole Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. It is the intent of the parties that such a security interest
would be effective whether any of the Certificates are sold, pledged or
assigned.
Section 11.09 No Intended Third-Party Beneficiaries. Except as
specified in Section 11.12, no Person other than a party to this Agreement, any
Mortgage Loan Seller or any Certificateholder shall have any rights with respect
to the enforcement of any of the rights or obligations hereunder. Without
limiting the foregoing, the parties to this Agreement specifically state that no
Borrower, Manager or other party to a Mortgage Loan is an intended third-party
beneficiary of this Agreement.
Section 11.10 [Reserved]
Section 11.11 Entire Agreement. This Agreement and with respect to
each Serviced Companion Loan Noteholder, the related Co-Lender Agreement
contains the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understanding, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersedes any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
Section 11.12 Third Party Beneficiaries. (a) Each of the Trustee and
the Master Servicer acknowledges that (i) each holder of a Serviced Companion
Loan is an intended third party beneficiary in respect of the rights afforded it
under this Agreement and may directly enforce such rights and (ii) each of the
Desert Passage Service Providers under the BACM 2006-1 Pooling and Servicing
Agreement is an intended third-party beneficiary under this Agreement with
respect to any provisions herein relating to (1) the reimbursement of any Desert
Passage Nonrecoverable Advances made with respect to the Desert Passage Mortgage
Loan by such Persons, (2) the indemnification of the BACM 2006-1 Servicer and
the BACM 2006-1 Special Servicer pursuant to this Agreement against any claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
the BACM 2006-1 Pooling and Servicing Agreement and this Agreement that relate
solely to its servicing of the Desert Passage Whole Loan and any related
reimbursement provisions and (3) the provisions set forth in Section 4.07(e) of
this Agreement regarding advancing coordination.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Paying Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION,
as Depositor
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Midland Loan Services, Inc.,
as Master Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
CWCAPITAL ASSET MANAGEMENT LLC,
as Special Servicer
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
as Trustee and Paying Agent
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A-1 GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1
Class A-1 Pass-Through Rate: 5.540% CUSIP: 00000XXX0
ISIN: US20047QAA31
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-1 Certificates: $90,000,000 this Certificate: $90,000,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-1
November 10, 2010
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-1 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as trustee and paying agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-l
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-1 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicer, the Special Servicer and the
Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Servicer any time on or after the Early Termination
Notice Date (defined as any date as of which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 1.0% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date) specifying the
Anticipated Termination Date, by purchasing on such date all, but not less than
all, of the Mortgage Loans then included in the Trust Fund, and the Trust's
interest in all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Servicer as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date, together with one month's interest thereon
at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-l Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-2
FORM OF CLASS A-2 GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-2
Class A-2 Pass-Through Rate: 5.690% CUSIP: 00000XXX0
ISIN: US20047QAB14
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-2 Certificates: $107,966,000 this Certificate: $107,966,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-2-1
June 10, 2011
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-2 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-3, Class AB,
Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-2 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-2
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-2 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-2 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-3
FORM OF CLASS A-3 GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-3
Class A-3 Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAC96
Original Aggregate Certificate Balance of Initial Certificate Balance of
thE Class A-3 Certificates: $40,098,000 this Certificate: $40,098,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-3-1
April 10, 2013
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-3 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-AB,
Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-3 Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-3
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-3 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-3 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-4
FORM OF CLASS A-AB GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-AB
Class A-AB Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAD79
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-AB Certificates: $98,824,000 this Certificate: $98,824,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-AB-1
June 10, 2015
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-AB Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-1A, Class A-X, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class A-AB Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-AB
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-AB Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-AB
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-AB Certificates referred to in the
Pooling and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-5
FORM OF CLASS A-4 GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-4
Class A-4 Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047WAE52
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-4 Certificates: $1,052,664,000 this Certificate: [$500,000,000]
[$52,664,000]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-4-[1][2][3]
May 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-4 Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class A-4 Certificates, the "Certificates"; the Holders of Certificates
issued under the Pooling and Servicing Agreement are collectively referred to
herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-4
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-4 Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-4
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-4 Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-6
FORM OF CLASS A-1A GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1A
Class A-1A Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAF28
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-1A Certificates: $323,552,000 this Certificate: $323,552,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-1A-1
May 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1A Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class X, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-1A Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-1A
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-1A Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-1A Certificates referred to in the
Pooling and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-7
FORM OF CLASS X
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO DISTRIBUTIONS
OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES AND WILL NOT BE
ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE NOTIONAL BALANCE OF
THE CLASS X CERTIFICATES IS EQUAL TO AN AMOUNT AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY, THE OUTSTANDING NOTIONAL
BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTIONAL
BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, AND CERTAIN OTHER ASSETS.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS X
Class X Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [U202DAA4]
ISIN:
[US20047QAL95](2) [USU2024DAA47]
Initial Notional Balance of this
Original Aggregate Notional Balance of the Certificate: [$500,000,000]
Class X Certificates: $2,447,292,352 [$447,292,352]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: X-[1][2][3][4][5]
N/A
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class X Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class X Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
interest then distributable, if any, allocable to the Class X Certificates for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Prepayment Premiums
and Yield Maintenance Charges as provided in the Pooling and Servicing
Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class X Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class X Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class X Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class X
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-8
FORM OF CLASS A-M GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-M
Class A-J Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAG01
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-M Certificates: $244,729,000 this Certificate: $244,729,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-M-1
May 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3,
Class AB, Class A-4, Class A-1A, Class X, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-M Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-M
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-M Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-M
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-M Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-9
FORM OF CLASS A-J GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-J
Class A-J Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAH83
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-J Certificates: $189,666,000 this Certificate: $189,666,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: A-J-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-J Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-2, Class A-3,
Class AB, Class A-4, Class A-1A, Class X, Class A-M, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class A-J Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class A-J
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class A-J Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class A-J
Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class A-J Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-10
FORM OF CLASS B GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS B
Class B Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAJ40
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class B Certificates: $52,005,000 this Certificate: $52,005,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: B-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class S, Class R and Class LR Certificates (together with the
Class B Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class B
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class B Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class B Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class B Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-11
FORM OF CLASS C GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS C
Class C Pass-Through Rate: Variable CUSIP: 00000XXX0
ISIN: US20047QAK13
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class C Certificates: $24,472,000 this Certificate: $24,472,000
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: C-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class C Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class C Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class C
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class C Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class C Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class C Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-12
FORM OF CLASS D
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS D
Class D Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0](1)
ISIN:
[US20047QAM78](2)
[USU2024DAB20](1)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class D Certificates: $30,591,000 this Certificate:
[$__________](2) [$0](1)
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: D-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class D Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class D Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class D
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class D Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiv) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class D Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class D Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class D
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-13
FORM OF CLASS E
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS E
Class E Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0](1)
ISIN:
[US20047QAN51](2)
[USU2024DAC03](1)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class E Certificates: $21,414,000 this Certificate:
[$__________](2) [$0](1)
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: E-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class E Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class E Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class E
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class E Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Class B and Class
C, for all of the Mortgage Loans and each REO Property (or the Trust Fund's
beneficial interest in a Mortgaged Property acquired with respect to a
Non-Serviced Mortgage Loan) remaining in the Trust Fund as contemplated by
clause (ii) of Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing
Agreement by giving written notice to all the parties to the Pooling and
Servicing Agreement no later than 60 days prior to the anticipated date of
exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class E Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class E Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class E
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-14
FORM OF CLASS F
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS F
Class F Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0](1)
ISIN:
[US20047QAP00](2)
[USU2024DAD85](1)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class F Certificates: $30,591,000 this Certificate:
[$__________](2) [$0](1)
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: F-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class F Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class F Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class F
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class F Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class F Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class F Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class F
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-15
FORM OF CLASS G
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS G
Class G Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAQ82](2) [USU2024DAE68]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class G Certificates: $24,473,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: G-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class G Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class G Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class G
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class G Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class G Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class G Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class G
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-16
FORM OF CLASS H
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS H
Class H Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAR65](2) [USU2024DAF34]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class H Certificates: $30,591,000 this Certificate: [__________]2
[$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: H-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class H Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class H Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class H
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class H Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class H Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class H Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class H
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-17
FORM OF CLASS J
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS J
Class J Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAS49](2) [USU2024DAG17]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class J Certificates: $12,236,000 this Certificate: [$_________]2
[$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: J-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class J Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class K, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class J Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class J
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class J Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee Administrator has caused this Class
J Certificate to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class J Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class J
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-18
FORM OF CLASS K
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS K
Class K Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAT22](2) [USU2024DAH99]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class K Certificates: $6,119,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: K-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class K Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class L, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class K Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class K
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class K Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class K Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class K Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class K
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-19
FORM OF CLASS L
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
2 For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS L
Class L Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAU94](2) [USU2024DAJ55]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class L Certificates: $9,177,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: L-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class L Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class M, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class L Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class L
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class L Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class L Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class L Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class L
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-20
FORM OF CLASS M
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS M CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS M
Class M Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAV77](2) [USU2024DAK29]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class M Certificates: $3,059,000 this Certificate: [$_________]2
[$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: M-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class M Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
N, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class M Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class M
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class M Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class M Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class M Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class M
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-21
FORM OF CLASS N
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS N CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS N
Class N Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAW50](2) [USU2024DAL02]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class N Certificates: $6,118,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: N-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class N Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class O, Class P, Class S, Class R and Class LR Certificates (together with
the Class N Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class N
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class N Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class N Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class N Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class N
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-22
FORM OF CLASS O
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS O CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS O
Class O Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAX34](2) [USU2024DAM84]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class O Certificates: $9,178,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: O-1
June 10, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class O Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class P, Class S, Class R and Class LR Certificates (together with
the Class O Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class O
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class O Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class O Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class O Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class O
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-23
FORM OF CLASS P
[RULE 144A] [REG S] GLOBAL CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET FORTH
THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE AT
ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS P CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED
IN SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT
UNDER CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE
CODE UNDER SECTIONS I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION
UNDER SIMILAR LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN
CERTIFICATED FORM SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM
ATTACHED TO THE POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE
EVENT THE TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH
ENTITY SHALL PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR
AGREEMENTS AS MAY BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE
DEPOSITOR, THE TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE
PURCHASE AND HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF SECTION 406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT
THE MASTER SERVICER, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED CERTIFICATE"
(EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL BE DEEMED TO
REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF ANY PLAN OR
USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN AN INSURANCE
COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY SUCH
PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH INSURANCE
COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF SECTION
406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS I AND III OF
PTCE 95-60, OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(1) AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE
CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.](1)
-------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS P
Class P Pass-Through Rate: Variable CUSIP:
[00000XXX0](2) [X0000XXX0]
ISIN:
[US20047QAY17](2) [USU2024DAN67]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class P Certificates: $33,650,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: July 10, 2006 Cut-off Date: June 1, 2006
Scheduled Final Distribution Date: No.: P-1
September 10, 2018
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class P Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Master Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class S, Class R and Class LR Certificates (together with
the Class P Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
principal and interest then distributable, if any, allocable to the Class P
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. Holders of this Certificate may be entitled to
Prepayment Premiums and Yield Maintenance Charges as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest on
the Class P Certificates will be calculated based on a 360-day year consisting
of twelve 30-day months on the outstanding Certificate Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class P Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class P Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
Class P
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
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EXHIBIT A-24
FORM OF CLASS S CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE
ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER
THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN AFFILIATE OF SUCH A
PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT, PURCHASING THE CERTIFICATES
BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS S
No.: S Percentage Interest: 100%
This certifies that Cadim TACH inc. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class S Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the Servicer. The Trust Fund was created,
and the Mortgage Loans are to be serviced, pursuant to the Pooling and Servicing
Agreement (as defined below). The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class R and Class LR Certificates (together with the
Class S Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes any representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and the Trustee has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each month,
or if such day is not a Business Day, the Business Day immediately following
such day, commencing in July 2006 (each such date, a "Distribution Date") an
amount equal to such Person's pro rata share (based on the Percentage Interest
represented by this Certificate) of that portion of the aggregate amount of
Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the benefit of the appropriate non-tendering
Certificateholders. If any Certificates as to which notice of the Termination
Date has been given pursuant to the Pooling and Servicing Agreement shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of
maintaining such funds in trust and of contacting such Certificateholders shall
be paid out of such funds. If within two years after the second notice any
Certificates shall not have been surrendered for cancellation, the Paying Agent
shall pay to the Trustee all amounts distributable to the Holders thereof, and
the Bond Trustee shall thereafter hold such amounts for the benefit of such
Holders until the earlier of (i) its termination as Trustee under the Pooling
and Servicing Agreement and the transfer of such amounts to a successor trustee
and (ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in accordance
with the Pooling and Servicing Agreement. Such funds held by the Trustee may be
invested under certain circumstances, and all income and gain realized from
investment of such funds shall accrue for its benefit.
This Certificate is limited in right of payment to Excess Interest,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the Collection Account attributable to the Mortgage Loans as
identified on the Trust Ledger, the Serviced Whole Loan Collection Accounts (to
the extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Distribution
Accounts, any Excess Liquidation Proceeds Account (to the extent of the Trust
Fund's interest therein and specifically excluding any interest of any Serviced
Companion Loan Noteholder therein), the Interest Reserve Account, any REO
Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate Certificate Balance. Such Certificates shall
be delivered by the Certificate Registrar in accordance with Article V of the
Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates or any class
of Serviced Companion Loan Securities by each Rating Agency; and (iv) to amend
or supplement a provision, or to supplement any other provisions to the extent
not inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates or
Serviced Companion Loan Securities that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates or any Serviced Companion Loan Securities, as applicable. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Servicer, the Special
Servicer and the Trustee with the prior written consent of the Holders of
Certificates representing not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of the Servicer or
the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise its
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
all property acquired in respect of any Mortgage Loan, at a purchase price,
payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicer as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class S Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class S Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agenet
By:____________________________________
Authorized Signatory
EXHIBIT A-25
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL INTEREST"
IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G(a)(2) AND 860D OF THE CODE. A TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AS SET FORTH IN SECTION
5.02(l) OF THE POOLING AND SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH
AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS CERTIFICATE TO BE
ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE
MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S.
PERSON, (C) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS
TO CONTINUE TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS
TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE.
ANY PURPORTED TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS
NOT A PERMITTED TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL
BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED
TRANSFEREE. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST",
AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE
TRANSFEREE AS PROVIDED IN REGULATIONS.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
COMM 2006-C7 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS R
No.: R-1 Percentage Interest: 100%
This certifies that JPMorgan Chase Bank, NA is the registered owner
of the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class R Certificateholder is not entitled to interest or principal
distributions. The Class R Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Upper-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Certificates to zero. It is not anticipated that there will be any assets
remaining in the Upper-Tier REMIC or Trust Fund on the Final Scheduled
Distribution Date following the distributions on the Regular Certificates. The
Trust Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial, multifamily and manufactured housing
properties and held in trust by the Trustee and serviced by the Master Servicer.
The Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class X, ClassA-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O, Class P, Class S and Class LR
Certificates (together with the Class R Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class R Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class R Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-26
FORM OF CLASS LR CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF A "RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE CODE. A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING AND SERVICING
AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND
THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A DISQUALIFIED
ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(e)(5), OR AN AGENT
(INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH DISQUALIFIED
ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT WILL NOT CAUSE
INCOME WITH RESPECT TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN
PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE
INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER U.S. PERSON, (C) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO PAY
ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY ANY TAXES
ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. IF THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST", AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-1(c), TRANSFERS OF THIS CERTIFICATE MAY BE
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO SATISFY A REGULATORY
SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE DISREGARDED, THE TRANSFEROR
MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY ITSELF AS TO THE FINANCIAL
CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO PAY A SPECIFIED AMOUNT TO THE
PROPOSED TRANSFEREE OR TRANSFER TO AN ELIGIBLE TRANSFEREE AS PROVIDED IN
REGULATIONS.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE AGREED
TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND TO THE
APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX MATTERS
PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING AGREEMENT TO
PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF SUBCHAPTER C OF
CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS AND ONLY (A)(1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A ("QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A PERSON
PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS SUCH TERM IS DEFINED IN RULE 501 (a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT, (4) IN THE CASE OF THE PRIVATE REGULAR
CERTIFICATES, IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
OF REGULATION S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF
THE ISSUER (WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF
THE 1933 ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT
AND (B) IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") OR A GOVERNMENTAL PLAN, AS DEFINED IN
SECTION 3(32) OF ERISA, OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS TO A MATERIAL EXTENT SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH, A "PLAN"), OR (B) A COLLECTIVE INVESTMENT
FUND IN WHICH SUCH PLANS ARE INVESTED, AN INSURANCE COMPANY USING ASSETS OF
SEPARATE ACCOUNTS OR GENERAL ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH
ARE DEEMED PURSUANT TO ERISA OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL
BE REQUIRED TO DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND
SERVICING AGREEMENT TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE MASTER
SERVICER AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE TRANSFER
IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH FEDERAL AND
STATE LAWS.
CD 2005-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS LR
No.: LR-1 Percentage Interest: 100%
This certifies that JPMorgan Chase Bank, NA is the registered owner
of the Percentage Interest evidenced by this Certificate in the Trust Fund. The
Class LR Certificateholder is not entitled to interest or principal
distributions. The Class LR Certificateholder will be entitled to receive the
proceeds of the remaining assets of the Lower-Tier REMIC, if any, on the Final
Scheduled Distribution Date for the Certificates, after distributions in respect
of any accrued but unpaid interest on the Certificates and after distributions
in reduction of principal balance have reduced the principal balances of the
Lower-Tier Regular Interests to zero. It is not anticipated that there will be
any assets remaining in the Lower-Tier REMIC or Trust Fund on the Final
Scheduled Distribution Date following the distributions on the Lower-Tier
Regular Interests. The Trust Fund, described more fully below, consists
primarily of a pool of Mortgage Loans secured by first liens on commercial,
multifamily and manufactured housing properties and held in trust by the Trustee
and serviced by the Master Servicer. The Holder of this Certificate, by virtue
of the acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class X-0, Xxxxx X-0, Class
A-AB, Class A-4, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P Class S and Class R Certificates (together with the
Class LR Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with, the
terms of a Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement"), by and among the Depositor, Midland Loan
Services, Inc., as the master servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan (the "Special Servicer") and Xxxxx Fargo
Bank, N.A. as Trustee and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans and has executed this Certificate in its limited capacity
as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names the
Certificates are registered at the close of business on each Record Date, which
will be the close of business on the last day of the calendar month preceding
the month in which such Distribution Date occurs or, if such day is not a
Business Day, the preceding Business Day; provided, however, that with respect
to the Distribution Date occurring in July 2006, the Record Date will be the
Closing Date. Such distributions shall be made on each Distribution Date other
than the Termination Date to each Certificateholder of record on the related
Record Date, by wire transfer of immediately available funds to the account of
such Holder at a bank or other entity located in the United States and having
appropriate facilities therefor provided that such Holder shall have provided
the Paying Agent with wire instructions in writing at least five Business Days
prior to the related Record Date, or, otherwise, by check mailed by first-class
mail to the address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting as
such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of the
Termination Date has been given pursuant to the Pooling and Servicing Agreement
shall not have been surrendered for cancellation within six months after the
time specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice not all of such Certificates shall
have been surrendered for cancellation, the Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any such Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee under the Pooling and Servicing Agreement and the transfer of such
amounts to a successor trustee and (ii) the termination of the Trust Fund and
distribution of such amounts to the Residual Certificateholders. No interest
shall accrue or be payable to any Certificateholder on any amount held as a
result of such Certificateholder's failure to surrender its Certificate(s) for
final payment thereof in accordance with the Pooling and Servicing Agreement.
Such funds held by the Trustee may be invested under certain circumstances, and
all income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans, as
more specifically set forth herein and in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust Fund
includes (i) such Mortgage Loans as from time to time are subject to the Pooling
and Servicing Agreement, together with the Mortgage Files relating thereto; (ii)
all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property (to the extent
of the Trust Fund's interest therein); (iv) all revenues received in respect of
any REO Property (to the extent of the Trust Fund's interest therein); (v) any
Assignments of Leases, Rents and Profits and any security agreements (to the
extent of the Trust Fund's interest therein); (vi) any indemnities or guaranties
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (vii) all assets deposited in the Lock-Box Accounts,
Cash Collateral Accounts, Escrow Accounts, and Reserve Accounts (to the extent
of the Trust Fund's interest therein), (viii) Loss of Value Reserve Fund amounts
on deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein), the
Distribution Accounts, any Excess Liquidation Proceeds Account (to the extent of
the Trust Fund's interest therein and specifically excluding any interest of any
Serviced Companion Loan Noteholder therein), the Interest Reserve Account, any
REO Account (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
including any reinvestment income, as applicable; (ix) any environmental
indemnity agreements relating to the Mortgaged Properties; (x) all insurance
policies with respect to the Mortgage Loans and the Mortgaged Properties (to the
extent of the Trust Fund's interest therein); (xi) the rights and remedies under
the Mortgage Loan Purchase Agreements relating to document delivery requirements
with respect to the Mortgage Loans and the representations and warranties of the
related Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier
Regular Interests; and (xiii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties evidenced
hereby, and the limitations thereon, and the rights, duties and immunities of
the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed by
the Holder or his duly authorized attorney), subject to the requirements in
Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute and
the Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of a like aggregate denomination as the Certificate being
surrendered. Such Certificates shall be delivered by the Certificate Registrar
in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(h) of that Agreement. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided in the Pooling and Servicing
Agreement) incurred by the Certificate Registrar in connection with such
transfer. The Certificate Registrar may require payment by each transferor of a
sum sufficient to cover any tax, expense or other governmental charge payable in
connection with any such transfer.
The Pooling and Servicing Agreement or any Custodial Agreement may
be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus or the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or the Pooling and Servicing Agreement or to correct or supplement any
provisions herein or therein which may be defective or inconsistent with any
other provisions herein or therein; (iii) to amend any provision of the Pooling
and Servicing Agreement to the extent necessary or desirable to maintain the
rating or ratings assigned to each of the Classes of Certificates by each Rating
Agency; and (iv) to amend or supplement a provision, or to supplement any other
provisions to the extent not inconsistent with the provisions of the Pooling and
Servicing Agreement, or any other change which will not adversely affect in any
material respect the interests of any Certificateholder or Serviced Companion
Loan Noteholder not consenting thereto, as evidenced in writing by an Opinion of
Counsel or, if solely affecting any Certificateholder or Serviced Companion Loan
Noteholder, confirmation in writing from each Rating Agency then rating any
Certificates that such amendment will not result in a qualification, withdrawal
or downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify as a
grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement may
also be amended from time to time by the Depositor, the Master Servicer, the
Special Servicer and the Trustee with the prior written consent of the Holders
of Certificates representing not less than 66-2/3% of the Percentage Interests
of each Class of Certificates affected thereby and each Serviced Companion Loan
Noteholder affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or modifying in any manner the rights of the
Certificateholders or the Serviced Companion Loan Noteholders; provided,
however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to
be distributed on any Certificate, without the consent of the
Holders of Certificates representing all of the Percentage
Interests of the Class or Classes affected thereby, or which
are required to be distributed to any Serviced Companion Loan
Noteholders without the consent of such Serviced Companion
Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class or
Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement which
relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests of
the Class or Classes affected thereby and the consent of any
affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend the Pooling and Servicing Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the
qualification of the Grantor Trust as a Grantor Trust, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, that such action, as evidenced by an
Opinion of Counsel (obtained at the expense of the Trust Fund), is necessary or
helpful to maintain such qualification or to prevent the imposition of any such
taxes, and would not adversely affect in any material respect the interest of
any Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage Interests
in the Controlling Class and, if no such Certificateholder exercises such
option, the Master Servicer, and if the Master Servicer does not exercise such
option, the Special Servicer, may effect an early termination of the Trust Fund,
upon not less than 30 days' prior Notice of Termination given to the Trustee,
the Special Servicer and the Master Servicer any time on or after the Early
Termination Notice Date (defined as any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date)
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
the Trust's interest in all property acquired in respect of any Mortgage Loan,
at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Master Servicer
as of a date not more than 30 days prior to the last day
of the month preceding such Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has been
acquired) at the Mortgage Rate to the last day of the
month preceding such Anticipated Termination Date (less
any P&I Advances previously made on account of
interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing Compensation,
Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the
Trust Fund, on the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not
more than 30 days prior to the last day of the month preceding
such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B and Class C Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
S, Class R and Class LR Certificates), including the Class X Certificates, for
all of the Mortgage Loans and each REO Property (or the Trust Fund's beneficial
interest in a Mortgaged Property acquired with respect to a Non-Serviced
Mortgage Loan) remaining in the Trust Fund as contemplated by clause (ii) of
Section 9.01(a) and Section 9.01(g) of the Pooling and Servicing Agreement by
giving written notice to all the parties to the Pooling and Servicing Agreement
no later than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund pursuant
to Section 9.01(c) of the Pooling and Servicing Agreement shall be borne by the
party exercising its purchase rights thereunder. The Trustee shall be entitled
to rely conclusively on any determination made by an Independent appraiser
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement.
The respective obligations and responsibilities of the Master
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as thereinafter set forth) shall terminate upon payment
(or provision for payment) to the Certificateholders and the Serviced Companion
Loan Noteholders of all amounts held by or on behalf of the Trustee and Master
Servicer, as the case may be, required under the Pooling and Servicing Agreement
to be so paid on the Distribution Date following the earlier to occur of (i) the
purchase of the Mortgage Loans and all other property held by the Trust Fund in
accordance with Section 9.01(c) of the Pooling and Servicing Agreement; (ii) the
exchange by the Sole Certificateholder of its Certificates for the Mortgage
Loans in accordance with Section 9.01(g) of the Pooling and Servicing Agreement;
and (iii) the later of (a) the receipt or collection of the last payment due on
any Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall the trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the United Kingdom, living
on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf by the Authenticating Agent, by
manual signature, this Certificate shall not be entitled to any benefit under
the Pooling and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Class LR Certificate
to be duly executed.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., N.A., not in its
individual capacity but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
This is one of the Class LR Certificates referred to in the Pooling
and Servicing Agreement.
Dated: June 7, 2006
XXXXX FARGO BANK, N.A., not in its individual
capacity but solely as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
Mortgage
Loan
ID Seller Property Name City State Zip Code
------------------------------------------------------------------------------------------------------------------------------
0 XxxX Xxxxxx Xxxxxxx Xxx Xxxxx XX 00000
2 GECC 000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxxxx XX 00000
3 BofA Bon-Ton Department Stores Portfolio Various Various Various
3 BofA Boston Store - Brookfield Xxxxxxxxxx XX 00000
3 BofA Boston Store - Wauwatosa Xxxxxxxxx XX 00000
0 XxxX Xxxxxxxx - Xxxxx Xxx Xxxxx Xxx XX 00000
3 BofA Xxxxxx Xxxxx Xxxxx - Xxxxxx Xxxxxx XX 00000
3.5 XxxX Xxxxxx Xxxxx Xxxxx - Xxxxxx Xxxxxx XX 00000
3.6 BofA Xxxxxx Xxxxx Xxxxx - Rockford Xxxxxxxx XX 00000
3.7 BofA Herberger's - Xx. Xxxx Xx. Xxxx XX 00000
3.8 BofA Younkers - Muskegon Xxxxxxxx XX 00000
3.9 BofA Xxxxxxxxx'x - Xxxxx Xxxxx XX 00000
3.1 BofA Younkers - Eau Claire Xxx Xxxxxx XX 00000
3.1 BofA Xxxxx-Xxxxxxx - Richmond Richmond IN 47374
3.1 BofA Xxxxx-Xxxxxxx - Zanesville Xxxxxxxxxx XX 00000
4 BofA Xxxxxxx Xxx Xxxx Xxxxx XX 00000
0 XXXX Xxxxxxxxxx & Xxxxxx Xxxxxxxx Xxx Xxxx XX 00000
0 XXXX Xxxxxxx'x Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
0 XXXX Xxxxx Xxxxxxxxx Office/Flex Portfolio Various NC Various
0 XXXX Xxxxxx Xxxxx Xxxxxxxxx XX 00000
7.2 GACC Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
7.3 GACC Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
7.4 GACC Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
7.5 GACC Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
0 XXXxxxxxx Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
0 XXXX Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000
00 XxxX Xxxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
00 XxxX Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
12 BofA Xxxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxx XX 00000
13 GACC 0000 Xxx Xxxxxx XX Xxxxxxxxxx XX 00000
GECC Sandalwood Portfolio Various TX Various
14 GECC Sandalwood - Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000
15 GECC Sandalwood - Oaks of Xxxxxxxxx Xxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxxxx - Xxxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxxxx - Xxxxxxxx Xxxxxxxx Xxxxxx XX 00000
18 GECC Sandalwood - Xxxxxxxxx Xxxxxxx Xxx Xxxxxxx XX 00000
19 GECC Sandalwood - Sundance Xxx Xxxxxxx XX 00000
20 GECC Sandalwood - Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxxxx - Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
00 XXXX Xxxxx Xxxxx Xxx Xxxx XX 00000
00 XXXX Xxxxxxxxx Xxxx Xxxxxx Xxxxx Xxxxxx XX 00000
00 XXXX Xxxxx Xxxxxx xx Xxxxxxxxx Xxxxxxxxxxx XX 00000
00 XXXX Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxx Xxxxx Xxxxx XX 00000
00 XXXX Xxxx Xxxx Xxxx Xxxx XX 00000
00 XXXX Xxxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
00 XXXX Xxxxxx Properties - LGA East Xxxxxxxx XX 00000
29.1 GACC LGA Courtyard by Marriott East Xxxxxxxx XX 00000
29.2 XXXX Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
00 XXXX Xxxxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx XX Various
30.1 GACC Mission Harris Xxxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
30.2 GACC Mission Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
30.3 GACC Xxxxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxx Xxxxx / Xxxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000
32 BofA 000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
33 GECC Valley Forge Xxxxxxxxxx Xxxxx Xxxx xx Xxxxxxx XX 00000
34 BofA Verandas at Blairstone Xxxxxxxxxxx XX 00000
00 XxxX Xxx xx Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000
36 BofA Xxxxxxxx Xxxxxxxx Xxxx Xxxxx Xxxx XX 00000
00 XxxX Xxxxx Xxxxxxxxxxxx Xxxxxxxx Xxxx XX 00000
38 GACC 000 Xxxx Xxxxxxx Xxxxxxx XX 00000
39 GECC On Xxx Xxxxxxxx Xxxxxxxxxx Xxxxxxx XX 00000
00 XXXxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx on Sand Key Xxxxxxxxxx Xxxxx XX 00000
00 XXXX Xxxxxxxxx Xxxxxxx Xxxx Xxxxx XX 00000
00 XXXxxxxxx XX Ventures Various Various Various
42.1 CWCapital The United Fixtures Xxxxxxxx Xxxxx XX 00000
42.2 CWCapital The Redford Property Xxxxxxx Xxxxxxxx XX 00000
42.3 CWCapital XX Xxxxx Xxxxx - The Xxxxx Plant Xxxxxxx XX 00000
42.4 CWCapital XX Xxxxx Xxxxx - The Xxxxx Spinning Plant Xxxxxxx XX 00000
42.5 CWCapital XX Xxxxx Xxxxx - The Xxxxxx Plant Xxxxxxxxxxx XX 00000
42.6 CWCapital XX Xxxxx Xxxxx - The National Plant Xxxxxxx XX 00000
42.7 CWCapital XX Xxxxx Xxxxx - The Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
42.8 CWCapital XX Xxxxx Xxxxx - The Chattanooga Plant Xxxxxxxxxxx XX 00000
43 GACC Xxx Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
44 GACC 1325 & 0000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
00 XXXX 000 & 000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
00 XXXX Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxx XX 00000
00 XXXxxxxxx Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
GACC Xxxxxx Portfolio Various CA Various
00 XXXX Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
00 XXXX Xxxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000
52 GACC 000 Xxxxxxxx Xxx Xxxx XX 00000
00 XXXX Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxx Xxxxx XXX Xxxxxxx XX 00000
55 GECC WXH - Courtyard Roanoke Xxxxxxx XX 00000
00 XXXX Xxx Xxxxxxxxx Xxxxxxxx Xxxxxxxxx XX 00000
BofA Xxxxx MHC Crossed Pool Various Various Various
57 BofA Xxxxx MHC Portfolio - 0 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
58 BofA Xxxxx MHC Portfolio - 6 Lincoln Xxxxxxx XX 00000
59 BofA Xxxxx MHC Portfolio - 1 Belle Aire Xxxxxxxxxx XX 00000
60 BofA Thomson Information Services Xxxxxxxxxx XX 00000
00 XXXX Xxxxxx Xxxxx Xxxxxxxxx Xxxx XX 00000
62 GACC 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
63 GECC WXH - Homewood Suites Cary Xxxx XX 00000
00 XXXX Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxx XX 00000
65 GECC WXH - Courtyard Xxx Arbor Xxx Xxxxx XX 00000
66 BofA 0 Xxxx Xxxxxx Xxx Xxxx XX 00000
67 GACC 000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
68 CWCapital Xxxx Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
00 XxxX Xxx-Xxxxxx Xxxxxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
70 BofA Xxxxxxx Xxx Xxxxxx Xxxxxxx Xxxxxxx XX 00000
71 GACC 000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
72 GECC Self Storage Plus-Eisenhower Xxxxxxxxxx XX 00000
00 XXXX Xxxxxxxxx Xxxxxxx XXX Xxxxxxxx XX 00000
74 GECC WXH - Hilton Windsor Xxxxxxx XX 00000
75 GECC WXH - Quality Suites Xxxxxxxxxx Xxxxxxxxxx XX 00000
76 BofA Xxxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
00 XXXxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
78 GECC WXH - Xxxxxxxx Xxxxxx Xxxx Xxxx Xxxx Xxxx XX 00000
00 XXXX Xxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
80 GECC WXH - Hampton Inn Duluth Xxxxxx XX 00000
81 GECC The Buckeye MHC Portfolio - Evergreen Various OH Various
81.1 XXXX Xxxxxx Xxxxx Xxxxxxx XX 00000
81.2 XXXX Xxxxxx Xxxx Xxxxxxx XX 00000
81.3 GECC Mobile Xxxxx Xxxxxxxxx XX 00000
00 XXXX Xxxxxxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
00 XXXX Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
00 XxxX Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
85 GECC Raymour & Xxxxxxxx Showroom - Norwalk Norwalk CT 06854
86 GECC WXH - Hampton Inn Xxxxxxx XX 00000
87 GACC Holiday Inn Express - Xxxxxx Xxxx Xxxxxx XX 00000
00 XxxX Xxxxxxxxx Xxx Xxxxxxx Xxxxxxx XX 00000
89 BofA Killeen Xxxxx Xxxxxx Xxxxxxx XX 00000
90 GECC WXH - Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
00 XXXxxxxxx Xxxxxxxxxx at Citadel Xxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
93 BofA Securlock at the Colony Xxx Xxxxxx XX 00000
94 GECC Eastport Xxxxxxxxxx XX 00000
00 XXXX XxXxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxxxxxxx Xxxxxxxx Xxxxxx XX 00000
97 GECC Xxxxxxx Xxxxx Xxxxxxxxxx Xxx Xxxxxxx XX 00000
98 GECC Self Storage Plus-Annapolis Xxxxxxxxx XX 00000
99 GECC WXH - Courtyard Xxxxxxx Xxxxxxx XX 00000
000 XXXX Xxxx Xxx Xxxxxxx Xxxxxxx XX 00000
101 GECC WXH - Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx XX 00000
102 GECC Sandalwood - Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxxxxx Xxxxxxxx Xxxxxx-Xxxxxx Xxxx Xxxxx XX 00000
000 XxxX Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000
000 XXXX Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxx Xxxxxxx XX 00000
000 XXXxxxxxx Xxx Xxxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
000 XXXX Xxxxxxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
108 GECC Xxxxxxx Xxx & Xxxxxx Xxxxxx Xxxx XX 00000
000 XXXX Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
000 XxxX Xxxxxx Xxxxxxxx Xxxxxxxxxx XX 00000
111 GECC WXH - Homewood Suites Phoenix Xxxxxxx XX 00000
112 GECC Raymour and Xxxxxxxxx- Oakland, NJ Xxxxxxx XX 00000
000 XXXX Xxxxxxx Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000
114 GECC Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
000 XXXxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
000 XXXX Xxxxxx Xxxx XXX Xxxxxxxx XX 00000
117 GECC Kellogg Gateway Portfolio Various Various Various
117.1 GECC Kellogg Shopping Center Xxxxxxx XX 00000
117.2 GECC Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxxxxx Xxxxx Xxxxxx Xxxxx XX 00000
000 XXXX Xxxxxxx Xxx - Xxxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxx Xxxxx Xxxxxxxx XX 00000
121 GECC Devon Self Storage - Edgewood Xxxxxxxx XX 00000
122 GECC Southside Self Storage Xxxxxxxxx XX 00000
000 XXXX Xxxxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000
124 GACC 0000-0000 Xxxxx Xxxxxx Xxxxx XX 00000
000 XXXX Xxxxxxxxxx Xxxxxxx Xxxxxx XX 00000
000 XXXX Xxxx xx Xxxxxxx Xxxxx Xxxxxx XX 00000
000 XXXX Xxxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
000 XXXX Xxxxxxxxx XXX xxx XX Xxxx Xxxxxxx XX 00000
000 XxxX Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000
000 XXXX Xxxxxx Xxxxx XXX Xxxx XX 00000
000 XXXX Xxxxxxx Xxx - Xxxxxxxxx Xxxxxxxxx XX 00000
000 XXXX Xxx Xxxxxxx Xxxxxx Xxxx Xxxxx XX 00000
000 XXXX Xxxxxx Xxxxxx Xxxxxxx XX 00000
136 GACC Rite Aid Toledo Xxxxxx XX 00000
GECC Alpharetta Retail Portfolio Xxxxxxxxxx XX 00000
000 XXXX Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
138 GECC Grand Slam for Xxxxx Bridge Shops Xxxxxxxxxx XX 00000
139 GECC Xxxxx Xxxxx Xxxxxx Xxxxxx X Xxxx Xxxx XX 00000
140 GECC Walgreens-Hackettstown Xxxxxxxxxxxx XX 00000
141 GACC 00000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
000 XXXX Xxxxx Xxxxxx Xxxxxx Xxxx XX 00000
000 XXXX Xxxxxx Xxxxx Xxxxxxxx XX 00000
000 XXXX Xxxxxxx Xxxxx XXX Xxxxxxx XX 00000
000 XXXX Xxxx Xxxxx XXX Xxxxxxxxxx XX 00000
146 GACC Rite Aid Xxxxxxx Xxxxxxx XX 00000
000 XxxX Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx Xxxx XX 00000
000 XXXX Xxxxxxx Xxx Xxxxxxxxxx XX 00000
000 XXXX Xxxxx Xxxx Xxxxxxxxxx Xxxxxx XX 00000
000 XxxX X Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
000 XXXX Xxxxx Xxxxx Xxxxxxx XXX Xxxxxx XX 00000
152 GECC Rite Aid Drugstore Xxxxxxxxxxx XX 00000
000 XXXX Xxxxxxxxx Xxxxxxx XXX Xxxxxx Xxxxxxxx XX 00000
000 XxxX Xxxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
155 GACC CVS Xxxxxxxx Xxxx Xxxxxxxx Xxxx XX 00000
156 GECC Xxxxxx XX Xxxx Xxxxx Xxxxxxx XX 00000
ID Address
---------------------------------------------------------------------------------------------------------------------------------
1 3663 Las Vegas Xxxxxxxxx Xxxxx
0 000 Xxxxx Xxxxxx Xxxxxx
3 Various
3 00000 Xxxx Xxxxxxxxx Xxxx
3 0000 Xxxxx Xxxxxxx Xxxx
3 000 Xxx Xxxx Xxxxxx
0 0000 Xxx Xxxxxx Center
3.5 0000 Xxxx Xxxx Xxxxx
3.6 0000 Xxxxxxxx Xxxxx
3.7 0000 Xxxxxxxxxx Xxxxxx Xxxx
3.8 0000 Xxxxxx Xxxxxx
3.9 0000 00xx Xxxxxx Xxxxx
3.1 0000 Xxxx Xxxx
3.1 000 Xxxxxxxxx
3.1 0000 Xxxxx Xxxxxx
4 0000 Xxxx Xxxxxxxxx Xxxx
5 000 Xxxxx Xxxxxx
6 6399 & 0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
7 Various
7 6125 & 0000 Xxxxxxxx Xxxx
7.2 5900 & 0000 Xxxxxxxxxx Xxxxxxxx Xxxxxxx
7.3 0000-0000 Xxxx X.X. Xxxxxx Xxxxxxxxx
7.4 10420 & 00000 Xxxxxx Xxx Xxxxxxxxx
7.5 9815 & 0000 Xxxxxxxxxx Xxxxxx Xxxxx
8 4301 & 0000 Xxxxx Xxxxxxxxxx Xxxx
9 0 Xxxxx Xxxx Xxxxxx
10 0000 Xxxxx Xxxxxxxx Xxxxxxx
11 0000 Xxxxxxxx Xxxxxx
12 0000 Xxxxxxx Xxxx
13 0000 Xxx Xxxxxx XX
Various
14 800 Vista Valet
15 0000 Xxxxxxx Xxx
00 000 Xx Xxxxxx Boulevard
17 0000 Xxxxxxxxxx Xxxx
18 0000 Xxxxxxx Xxxx
19 0000 Xxxxxxxxxx Xxxxx
20 5450 Xxxxxxx Road
21 0000 Xxxxxxxxxxx Xxx
22 00 Xxxxx Xxxxx
00 000 Xxxxxxxxx Xxxx
00 0000 - 0000 Xxxx 00xx Xxxxxx
25 14810-14900 Xxxxxxxxxx Xxxxxxxxx
00 0000-0000 Xxxx Xxxxxx Xxxx
27 516 & 000 Xxxxxxxx Xxxx Xxxx
28 000 Xxxxx Xxxxxxxx Xxxxxx
29 0000 Xxxxx Xxxxxxx Xxxxxxx
29.1 0000 Xxxxx Xxxxxxx Xxxxxxx
29.2 0000 Xxxxx Xxxxxxx Xxxxxxx
30 Various
30.1 00000 Xxxxxxxxx Xxxxx
30.2 0000 Xxxx Xxxx Xxxxxx
30.3 0000 Xxxxxxx Xxxxx Xxxxx
31 000 Xxxxx Xxxxx and 0000 Xxxxxx Xxxxx
32 000 Xxxxxxxx Xxxxxx
33 0000 Xxxxx Xxxxxx
00 0000 Xxxxxxx Xxxxxx XX
35 211 North Coast Highway
36 3660 North Xxxxxxxx Road, 0000-0000 Xxxxxxxx Xxxxxxxxx, 1747 and 0000 Xxxxxxxxxx Xxxxxxx and 0000 Xxxxx Xxxxxxxx Xxxx
37 00000 Xxxxxxx Xxxxxx and 000 Xxxxxx Xxxxxx
00 000 Xxxx Xxxxxxx Street
39 000 Xxxxxxx Xxxxx
00 0000 Xxxx Xxxxxxxxx
41 401-435 East Shoreline Village Drive
42 Various
42.1 2070 S. 0xx Xxxxxx
00.0 00000 Xxxxxxxx Xxxx
42.3 000 Xxxxx Xxxxxx
42.4 0 Xxxxxxx Xxxxxx
42.5 0 Xxxxxx Xxxxxx
42.6 000 X. Xxxxxxx Xxxxxx
42.7 000 X. Xxxx Xxxxxx
42.8 0000 X. Xxxxxxx Xxxxxx
43 0000 Xxxx Xxxxx Xxxxx
44 1325 & 0000 Xxxxx Xxxxxx
45 313 & 000 Xxxxxxxx Xxxxxx
46 0000 Xxxxxxxxx Xxxxxx
47 000 X. Xxxxxxxx Xxxx Xxxx
Various
48 1250 La Xxxxx Xxxx
00 0000 Xx Xxxxx Xxxx
50 000-000 Xxxxx Xxxxxx Xxxxx
51 0000 Xxxxx Xxxxxxxxx Xxxxxxx
52 000 Xxxxxxxx
53 1875 East Xxxxxxxx Xxxx Xxxx
00 0000 Xxxxxxx Xxxx
55 0000 Xxxxxx Xxxxx XX
00 00 Xxxxx Xxxxxxx Street
Various
57 1204 US 00 Xxxx
00 000 00xx Xxxxxx
59 000 Xxxxx Xxxx Xxxxxx
60 350 North Xxxxx Xxxxx Xxxx
00 0000 Xxxxxxx Entry
62 0000 Xxxxxxxx Xxxxxx Xxxxxxx
63 000 XxxXxxxxx Xxxxx
64 0000-0000 Xxxxxx Xxxxxx
65 0000 Xxxxxxxxx Xxxxxx
00 0 Xxxx Xxxxxx
00 000 Xxxxxxx Street
68 000 Xxx Xxxx Xxxx Xxxx
00 0000 & 0000 Xxxxxx Xxxxxx
70 000 Xxxxx Xxxxxx
71 000 Xxxxxxx Xxxxxx
72 0000 Xxxxxxxxxx Xxxxxx
73 0000 XX Xxxxxxx 000 Xxxxx
74 000 Xxxxxxxxx Xxxxx
75 0000 Xxxxx Xxxx Xxxx
76 00 Xxxxx Xxxxxxxxxx Xxxxxx
77 000 Xxxxx Xxxxx Xxxxxx
78 000 Xxxxxxxx Xxxxxx
79 000 00xx Xxxxxx Xxxxx
80 0000 Xxxxxxxx Xxxx
81 Various
81.1 0000 Xxxxx Xxxx Xxxx
81.2 0000 Xxxxxx Xxxx
81.3 000 Xxxxxx Xxxx
82 1578 US Xxx 00 Xxxxx
00 000 Xxxxx Xxxxxx Xxxxxx
84 0000 Xxxxxx Xxxxxx XX
85 000 Xxxxxxxxxxx Xxxxxx
86 000 Xxxxxxx Xxxxx XX
87 000 Xxxx Xxxxxxx Xxxx
88 000 Xxxxxx Xxxxxx
89 2000 East Central Texas Xxxxxxxxxx
00 0000 Xxxxx Xxxxxx Xxxx
91 1005-1075 Xxxxx Xxxxxxx Xxxxxxxxx
00 000-000 XxXxxxxx Xxxxxxxxx
93 0000 Xxxx Xxxxxx
94 0000 Xxxxxxxxxx Xxxx
95 0000 Xxxxxx Xxxx
96 3005, 3025,3055 & 0000 Xxxxxxxxxxxx Xxxxxxxxx
00 0000 Xxxxxxxxx Xxxx 410
98 2005 Xxxxx Xxxx
00 00000 Xxxxxxx Xxxx
100 000 Xxxxxx Xxxx
101 000 Xxx Xxxx Xxxxxxxxx
000 0000 Xxxxx Xxxxx Xxxxxx Drive
103 0000 Xxxx Xxxxx Xxxxxx
104 14495 SW Beef Bend Road
105 3230, 3240, 0000 Xxxxxxxxxx Xxxxxxxxx
106 0000 Xxxxxx Xxxxxx
107 1210-1278 Xxxx Xxxxxxxxx Xxxxxxx
000 0000 Xxxxxxxxxx Xxxx
109 4013, 4015, 4037, 4071 & 0000 Xxxxxx Xxxx
110 2732 00xx Xxxxxx Xxxxx
000 0000 Xxxx Xxxxx Avenue
112 00 Xxxxxxxx Xxxx
113 0000 Xxxx Xxxx
114 904, 914, 924 & 000 Xxxxxx Xxxxxxxxx
115 0-0 Xxxxxx Xxxx Xxxxx
116 15616 00xx Xxxxxx Xxxx
000 Various
117.1 00000 Xxxx Xxxxxxx Xxxxx
117.2 0000 Xxxxxxxxx Xxxxxxx
118 000 Xxxxxxxx Xxxxxx
000 0000 Xxxxx Xxxxxxxxxx Parkway
120 27411 & 00000 Xxxx Xxxx
121 1306 Pulaski Xxxxxxx
000 000 Xxxxxxxxxx Xxxx
123 0000 Xxxxx Xxxxxxxxx Xxxx
124 0000-0000 Xxxxx Xxxxxx
125 2300 Xxxxxx Xxxxx Road Southeast
126 1825 Mall of Georgia Boulevard
127 6921 Lakeview Xxxxx Xxxxx
000 00 Xxxxxxx Xxxxxx
129 0000 Xxxxxx Xxxxxx
130 10100 Xxxxxxx Xxxxx
000 0000 Xxxxx Xxxxxxx Trail
132 000 Xxxxxxx Xxxxxx Xxxxx
133 1024 Brookhollow Xxxxx Xxxxx
000 0000-0000 Xxxxx Xxx Xxxxxxx Diagonal
135 5341 Highway 25
136 2450 South Xxxxxxxx Road
Various
137 11005 Xxxxx Xxxxxx Xxxx
000 00000 Xxxxx Xxxxxx Xxxx
139 0000 Xxxxx Xxxxx Xxxxxxxxx
000 XX Xxxxx Xxxxx 00 xxx Xxxxxxxx Xxxx
141 00000 Xxxxxxx Xxxxxx
142 0000-0000 Xxxxx Xxxxxx
143 3718 Dallas Xxxxxxx
000 0000 Xxxx Xxxx
145 14300 - 00xx Xxxxxx Xxxxx
000 000 Xxxx Xxxxxx
147 260-430 Xxxxxxx Drive
148 00 Xxxxxxx Xxx
149 0000 Xxxxx Xxxxxx
150 0000 Xxxxxxx Xxxx
151 0000 Xxxxx Xxxxx Xxxx
152 9616 Highway 403
153 2900 West Superstition Boulevard
154 910-916 Xxxxxx and 417 Xxxxx
155 0000 Xxxxx Xxxxxxx Xxxxxx
156 00000 Xxxxxxxxx Xxxxxxx 225
Cut-off Monthly Interest
Interest Original Date Maturity / ARD Payment Debt Administrative Accrual
ID Rate Balance Balance Balance Date Service Fee Rate Basis
-----------------------------------------------------------------------------------------------------------------------------------
1 5.4636% 131,883,333 131,883,333 118,430,004 1 739,475 0.0208% Actual/360
2 5.7800% 130,000,000 130,000,000 121,271,986 1 761,124 0.0208% Actual/360
3 6.2125% 129,828,991 129,670,402 101,420,722 1 854,629 0.0208% Actual/360
3 26,314,339 26,282,196
3 25,917,861 25,886,202
3 11,889,340 11,874,816
3 11,017,488 11,004,030
3.5 9,114,994 9,103,860
3.6 8,243,142 8,233,073
3.7 7,530,081 7,520,883
3.8 7,133,604 7,124,890
3.9 6,974,813 6,966,293
3.1 6,181,857 6,174,306
3.1 4,834,632 4,828,726
3.1 4,676,840 4,671,127
4 5.8340% 122,000,000 122,000,000 102,971,948 1 718,482 0.0208% Actual/360
5 5.7850% 100,000,000 100,000,000 89,839,371 1 585,798 0.0308% Actual/360
6 5.5190% 61,600,000 61,600,000 59,138,010 1 350,493 0.0308% Actual/360
7 5.8410% 55,000,000 55,000,000 50,478,902 1 324,152 0.0308% Actual/360
7 13,700,000 13,700,000
7.2 12,300,000 12,300,000
7.3 12,240,000 12,240,000
7.4 10,260,000 10,260,000
7.5 6,500,000 6,500,000
8 5.8750% 55,000,000 55,000,000 50,507,969 1 325,346 0.0208% Actual/360
9 5.7820% 53,750,000 53,750,000 48,369,759 1 314,764 0.0308% Actual/360
10 6.2970% 52,725,000 52,725,000 45,109,168 1 326,250 0.0208% Actual/360
11 5.3840% 43,612,290 43,612,290 40,448,915 1 244,461 0.0208% Actual/360
12 5.8115% 43,000,000 42,880,171 36,273,303 1 252,619 0.0208% Actual/360
13 5.9420% 37,000,000 37,000,000 35,640,957 1 220,456 0.0308% Actual/360
5.5969% 36,515,000 36,441,995 30,599,147 1 209,556 Actual/360
14 5.5700% 8,107,000 8,090,698 6,787,970 1 46,387 0.0208% Actual/360
15 5.5700% 6,244,000 6,231,444 5,228,085 1 35,727 0.0208% Actual/360
16 5.5700% 5,409,000 5,398,123 4,528,941 1 30,950 0.0208% Actual/360
17 5.5700% 4,650,000 4,640,649 3,893,434 1 26,607 0.0208% Actual/360
18 5.7200% 3,348,000 3,341,484 2,816,171 1 19,474 0.0208% Actual/360
19 5.5700% 3,256,000 3,249,453 2,726,241 1 18,630 0.0208% Actual/360
20 5.7200% 3,201,000 3,194,770 2,692,521 1 18,619 0.0208% Actual/360
21 5.5700% 2,300,000 2,295,375 1,925,784 1 13,160 0.0208% Actual/360
22 5.7500% 35,000,000 35,000,000 35,000,000 1 170,038 0.0308% Actual/360
23 5.9990% 35,000,000 35,000,000 31,629,906 1 209,820 0.0308% Actual/360
24 5.3600% 32,657,000 32,657,000 30,285,082 1 182,565 0.0208% Actual/360
25 5.9880% 30,250,000 30,250,000 30,250,000 1 153,044 0.0308% Actual/360
26 5.4200% 30,208,000 30,208,000 28,037,468 1 170,005 0.0208% Actual/360
27 5.6450% 29,800,000 29,800,000 26,191,904 1 171,922 0.0308% Actual/360
28 5.9370% 27,000,000 27,000,000 24,370,404 1 160,787 0.0308% Actual/360
29 5.7740% 27,000,000 27,000,000 23,805,244 1 157,977 0.0308% Actual/360
29.1 15,552,000 15,552,000
29.2 11,448,000 11,448,000
30 5.8880% 26,000,000 26,000,000 24,291,007 1 154,016 0.0308% Actual/360
30.1 11,021,739 11,021,739
30.2 7,842,391 7,842,391
30.3 7,135,870 7,135,870
31 6.5700% 26,000,000 25,970,402 20,523,306 1 176,693 0.1108% Actual/360
32 5.6710% 25,091,122 25,091,122 22,521,642 1 145,168 0.0208% Actual/360
33 6.1400% 25,000,000 25,000,000 22,652,762 1 163,222 0.0208% Actual/360
34 5.4410% 23,000,000 23,000,000 20,120,673 1 129,741 0.0208% Actual/360
35 5.5700% 22,500,000 22,500,000 20,161,504 1 128,742 0.0208% Actual/360
36 5.5120% 22,100,000 22,100,000 20,170,076 1 125,648 0.0208% Actual/360
37 5.4310% 21,600,000 21,461,231 19,297,683 1 121,709 0.0208% Actual/360
38 6.2750% 21,350,000 21,350,000 21,350,000 1 113,193 0.0308% Actual/360
39 5.5500% 21,298,000 21,298,000 19,805,108 1 121,597 0.0208% Actual/360
40 5.8940% 20,000,000 19,962,537 18,682,929 1 118,551 0.0308% Actual/360
41 6.1120% 19,750,000 19,750,000 18,506,460 1 119,837 0.0308% Actual/360
42 5.8000% 19,495,000 19,495,000 18,480,553 1 114,388 0.0308% Actual/360
42.1 6,375,000 6,375,000
42.2 5,325,000 5,325,000
42.3 2,118,750 2,118,750
42.4 1,556,250 1,556,250
42.5 1,365,000 1,365,000
42.6 975,000 975,000
42.7 918,750 918,750
42.8 861,250 861,250
43 5.7450% 19,200,000 19,200,000 18,465,921 1 111,985 0.0308% Actual/360
44 5.9240% 18,000,000 18,000,000 18,000,000 1 90,094 0.0308% Actual/360
45 5.9210% 17,500,000 17,500,000 16,082,154 1 104,034 0.0308% Actual/360
46 5.5500% 17,405,000 17,405,000 16,184,990 1 99,370 0.0208% Actual/360
47 5.9200% 17,000,000 17,000,000 15,888,947 1 101,051 0.0308% Actual/360
5.8065% 16,750,000 16,750,000 15,537,624 1 98,351 Actual/360
48 5.7980% 7,625,000 7,625,000 7,114,828 1 44,730 0.0308% Actual/360
49 5.7980% 6,265,000 6,265,000 5,845,823 1 36,752 0.0308% Actual/360
50 5.8480% 2,860,000 2,860,000 2,576,974 1 16,869 0.0308% Actual/360
51 5.7800% 16,500,000 16,468,305 13,904,209 1 96,604 0.0208% Actual/360
52 5.7470% 16,125,000 16,125,000 15,035,549 1 94,070 0.0308% Actual/360
53 5.4600% 16,100,000 16,100,000 14,952,273 1 91,010 0.0208% Actual/360
54 5.8200% 15,251,000 15,221,961 12,867,193 1 89,680 0.0208% Actual/360
55 5.9390% 14,651,000 14,651,000 13,467,843 1 87,266 0.0208% Actual/360
56 6.3250% 14,575,000 14,575,000 13,010,541 1 90,453 0.0308% Actual/360
5.6109% 13,396,420 13,396,420 11,766,218 1 76,998 Actual/360
57 5.6250% 9,200,000 9,200,000 8,083,159 1 52,960 0.0208% Actual/360
58 5.5840% 2,876,420 2,876,420 2,524,783 1 16,484 0.0208% Actual/360
59 5.5710% 1,320,000 1,320,000 1,158,275 1 7,554 0.0208% Actual/360
60 5.9050% 13,200,000 13,146,026 12,526,490 1 78,336 0.0208% Actual/360
61 5.8300% 13,054,000 13,054,000 12,186,317 1 76,844 0.0208% Actual/360
62 5.9660% 13,000,000 13,000,000 11,740,704 1 77,658 0.0308% Actual/360
63 5.9390% 12,747,000 12,747,000 11,717,602 1 75,926 0.0208% Actual/360
64 5.6700% 12,600,000 12,600,000 11,736,591 1 72,891 0.0208% Actual/360
65 5.9390% 12,225,000 12,225,000 11,237,757 1 72,816 0.0208% Actual/360
66 5.5530% 12,000,000 12,000,000 12,000,000 1 56,301 0.0208% Actual/360
67 6.1870% 12,000,000 12,000,000 11,578,954 1 73,395 0.0308% Actual/360
68 6.1920% 12,000,000 11,990,550 10,684,178 1 73,434 0.0308% Actual/360
69 5.0840% 12,000,000 11,764,196 8,999,319 1 70,739 0.0708% Actual/360
70 5.8280% 11,505,000 11,495,027 9,709,836 1 67,711 0.0208% Actual/360
71 6.1870% 11,000,000 11,000,000 10,614,040 1 67,279 0.0308% Actual/360
72 5.8700% 10,600,000 10,570,859 8,957,508 1 62,669 0.0208% Actual/360
73 5.4820% 10,500,000 10,500,000 9,754,212 1 59,499 0.0308% Actual/360
74 5.9390% 10,384,000 10,384,000 9,545,429 1 61,851 0.0208% Actual/360
75 5.9390% 10,350,000 10,350,000 9,514,174 1 61,648 0.0208% Actual/360
76 5.6890% 10,050,000 10,040,973 8,446,251 1 58,260 0.0208% Actual/360
77 5.9240% 10,000,000 9,967,037 4,445,513 1 83,976 0.0308% Actual/360
78 5.9390% 9,900,000 9,900,000 9,100,515 1 58,968 0.0208% Actual/360
79 5.6000% 9,600,000 9,600,000 8,430,070 1 55,112 0.0208% Actual/360
80 5.9390% 9,585,000 9,585,000 8,810,953 1 57,092 0.0208% Actual/360
81 6.2300% 9,349,000 9,341,713 7,984,151 1 57,442 0.0208% Actual/360
81.1 4,438,000 4,434,541
81.2 2,800,000 2,797,818
81.3 2,111,000 2,109,355
82 5.4600% 9,249,000 9,249,000 8,094,725 1 52,283 0.0808% Actual/360
83 5.7190% 9,200,000 9,173,810 7,739,111 1 53,508 0.0308% Actual/360
84 5.4400% 9,000,000 8,847,774 6,836,467 1 54,946 0.0508% Actual/360
85 5.9200% 8,500,000 8,471,970 2,206,174 1 71,361 0.0208% Actual/360
86 5.9390% 8,450,000 8,450,000 7,767,611 1 50,331 0.0208% Actual/360
87 6.1050% 8,450,000 8,427,374 6,568,033 1 54,987 0.0308% Actual/360
88 5.7720% 8,440,000 8,423,759 7,110,496 1 49,372 0.0208% Actual/360
89 5.5050% 8,200,000 8,200,000 7,618,539 1 46,584 0.0708% Actual/360
90 5.9390% 7,950,000 7,950,000 7,307,989 1 47,353 0.0208% Actual/360
91 5.7720% 7,840,000 7,824,914 6,605,011 1 45,862 0.0508% Actual/360
92 5.7970% 7,820,000 7,820,000 7,296,913 1 45,869 0.0308% Actual/360
93 5.9290% 7,800,000 7,800,000 7,039,328 1 46,409 0.0708% Actual/360
94 6.0200% 7,790,000 7,790,000 7,290,608 1 46,805 0.0208% Actual/360
95 5.7770% 7,708,000 7,708,000 6,935,843 1 45,114 0.0308% Actual/360
96 6.0600% 7,625,000 7,625,000 7,140,037 1 46,010 0.0208% Actual/360
97 5.8900% 7,560,000 7,560,000 6,683,723 1 44,793 0.0208% Actual/360
98 5.8700% 7,400,000 7,379,656 6,253,354 1 43,750 0.0208% Actual/360
99 5.9390% 7,263,000 7,263,000 6,676,469 1 43,261 0.0208% Actual/360
100 6.4300% 7,250,000 7,241,507 5,696,856 1 48,636 0.0308% Actual/360
101 5.9390% 7,222,000 7,222,000 6,638,780 1 43,017 0.0208% Actual/360
102 5.5700% 7,072,000 7,057,779 5,921,368 1 40,465 0.0208% Actual/360
103 6.0800% 7,020,000 7,020,000 7,020,000 1 36,062 0.0208% Actual/360
104 5.6640% 6,800,000 6,800,000 6,333,269 1 39,312 0.0208% Actual/360
105 5.5500% 6,744,000 6,744,000 6,271,277 1 38,504 0.0208% Actual/360
106 5.9620% 6,700,000 6,700,000 6,265,870 1 40,006 0.0508% Actual/360
107 5.7800% 6,500,000 6,500,000 6,063,599 1 38,056 0.0708% Actual/360
108 5.9100% 6,500,000 6,481,998 5,019,181 1 41,523 0.0808% Actual/360
109 6.2900% 6,450,000 6,450,000 5,517,229 1 39,882 0.0208% Actual/360
110 5.6050% 6,480,000 6,445,909 5,429,473 1 37,221 0.0208% Actual/360
111 5.9390% 6,330,000 6,330,000 5,818,814 1 37,704 0.0208% Actual/360
112 5.7400% 6,300,000 6,287,792 5,302,462 1 36,725 0.0208% Actual/360
113 5.9100% 6,276,000 6,276,000 5,661,841 1 37,265 0.0208% Actual/360
114 5.8000% 6,250,000 6,250,000 5,514,113 1 36,672 0.0208% Actual/360
115 5.9040% 6,250,000 6,237,344 4,363,503 1 44,431 0.0508% Actual/360
116 5.8400% 6,183,000 6,165,883 5,771,826 1 36,437 0.0208% Actual/360
117 5.6400% 5,997,500 5,997,500 5,675,838 1 34,582 0.0208% Actual/360
117.1 3,325,886 3,325,886
117.2 2,671,614 2,671,614
118 6.3260% 5,625,000 5,625,000 5,115,082 1 34,913 0.0308% Actual/360
119 6.0000% 5,325,000 5,303,614 4,124,954 1 34,309 0.0208% Actual/360
120 6.3100% 5,157,000 5,157,000 4,688,104 1 31,954 0.0308% Actual/360
121 5.8500% 5,100,000 5,100,000 4,504,790 1 30,087 0.0208% Actual/360
122 5.9500% 5,100,000 5,100,000 4,420,820 1 30,413 0.0208% Actual/360
123 5.8600% 4,975,000 4,975,000 4,788,427 1 29,381 0.0208% Actual/360
124 6.3400% 4,900,000 4,900,000 4,197,367 1 30,458 0.0308% Actual/360
125 5.8800% 4,360,000 4,360,000 3,931,017 1 25,805 0.0208% Actual/360
126 6.1100% 4,316,000 4,316,000 3,672,700 1 26,183 0.0708% Actual/360
127 6.0200% 4,125,000 4,125,000 3,729,280 1 24,785 0.0308% Actual/360
128 6.1500% 4,100,000 4,100,000 3,646,133 1 24,978 0.0208% Actual/360
129 6.3500% 4,000,000 4,000,000 3,427,396 1 24,889 0.0208% Actual/360
130 5.6600% 4,000,000 3,992,112 3,358,457 1 23,115 0.0208% Actual/360
131 5.8240% 3,965,000 3,957,457 3,345,653 1 23,325 0.0208% Actual/360
132 5.9000% 3,920,000 3,916,665 3,315,489 1 23,251 0.0208% Actual/360
133 6.0000% 3,892,000 3,876,369 3,014,896 1 25,076 0.0208% Actual/360
134 5.8470% 3,800,000 3,800,000 3,356,029 1 22,410 0.0308% Actual/360
135 5.4500% 3,600,000 3,600,000 3,149,799 1 20,328 0.0208% Actual/360
136 6.3810% 3,517,500 3,514,869 3,016,982 1 21,958 0.0308% Actual/360
6.1100% 3,504,000 3,504,000 2,981,728 1 21,257 Actual/360
137 6.1100% 2,679,000 2,679,000 2,279,695 1 16,252 0.0708% Actual/360
138 6.1100% 825,000 825,000 702,033 1 5,005 0.0708% Actual/360
139 6.0400% 3,377,000 3,377,000 2,995,591 1 20,334 0.0608% Actual/360
140 5.4900% 3,375,000 3,375,000 3,135,731 1 19,142 0.0208% Actual/360
141 6.4940% 3,350,000 3,344,523 2,882,201 1 21,161 0.0308% Actual/360
142 5.8100% 3,080,000 3,080,000 2,874,489 1 18,092 0.0308% Actual/360
143 6.1100% 2,867,000 2,867,000 2,439,674 1 17,392 0.0708% Actual/360
144 5.7500% 2,866,000 2,866,000 2,525,655 1 16,725 0.0208% Actual/360
145 6.2300% 2,800,000 2,797,818 2,391,231 1 17,204 0.0208% Actual/360
146 6.3750% 2,570,400 2,568,474 2,204,273 1 16,036 0.0308% Actual/360
147 5.8950% 2,550,000 2,550,000 2,156,213 1 15,117 0.0208% Actual/360
148 5.7200% 2,500,000 2,500,000 2,329,549 1 14,542 0.0208% Actual/360
149 5.9750% 2,500,000 2,493,294 2,119,233 1 14,949 0.0408% Actual/360
150 5.6540% 2,381,250 2,381,250 2,137,411 1 13,751 0.0208% Actual/360
151 6.0200% 2,375,000 2,370,674 2,015,730 1 14,270 0.0208% Actual/360
152 6.1900% 2,000,000 1,996,494 1,705,897 1 12,236 0.0208% Actual/360
153 5.7200% 2,000,000 1,994,308 1,682,466 1 11,633 0.0208% Actual/360
154 5.3000% 1,595,000 1,579,110 1,323,849 1 8,857 0.1008% Actual/360
155 6.0370% 1,550,000 1,545,800 1,202,038 1 10,022 0.0308% Actual/360
156 6.0900% 1,100,000 1,100,000 976,859 1 6,659 0.0208% Actual/360
Crossed Net
ARD With Loan Group Rentable Area
ID (Yes/No) Lockbox Other Loans 1, 2A or 2B Sq. Ft./Units/Rooms/Pads
----------------------------------------------------------------------------------------------------------------------------------
1 No Hard No 1 493,984
2 No Hard No 1 1,021,958
3 No Hard No 1 2,003,186
3 218,705
3 210,713
3 106,157
3 120,000
3.5 128,000
3.6 520,000
3.7 124,136
3.8 106,131
3.9 185,147
3.1 102,000
3.1 111,350
3.1 70,847
4 No Hard No 1 691,966
5 No Hard No 1 589,387
6 No Hard No 1 413,514
7 No Hard No 1 746,337
7 160,354
7.2 206,321
7.3 174,506
7.4 125,156
7.5 80,000
8 No Hard No 1 531,574
9 No Soft at Closing, Springing Hard No 1 377,684
10 No Hard No 1 315
11 No None No 2 762
12 No Hard No 1 254,880
13 No None No 1 167,233
No None Yes - A 1 1,402
14 No None Yes - A 1 276
15 No None Yes - A 1 276
16 No None Yes - A 1 304
17 No None Yes - A 1 160
18 No None Yes - A 1 68,957
19 No None Yes - A 1 184
20 No None Yes - A 1 66,858
21 No None Yes - A 1 202
22 No Hard No 1 26,337
23 No Hard No 1 99
24 No None No 1 305,858
25 No Soft at Closing, Springing Hard No 1 288,074
26 No None No 1 244,018
27 No Hard No 1 154,856
28 No Hard No 1 95,832
29 No Soft at Closing, Springing Hard No 1
29.1 288
29.2 90,170
30 No Soft No 2 618
30.1 249
30.2 207
30.3 162
31 No None No 2 300
32 No Soft No 1 73,697
33 No None No 1 488
34 No None No 2 300
35 No Soft No 1 70
36 No Hard No 1 197,730
37 No Hard No 1 578,050
38 No None No 1 172,446
39 No None No 2 322
40 No Hard No 1 220
41 No None No 1 67,057
42 Yes Hard No 1 1,652,089
42.1 300,000
42.2 230,600
42.3 123,202
42.4 182,912
42.5 400,574
42.6 116,174
42.7 16,395
42.8 282,232
43 No Hard No 1 158,879
44 No None No 2 150
45 No None No 1 105,982
46 No None Xx 0 000
00 Xx Xxxx Xx 0 000
Xx None Yes - B 1 91,705
48 No None Yes - B 1 28,725
49 No None Yes - B 1 20,440
50 No None Yes - B 1 42,540
51 No None No 1 161,763
52 No None No 1 16,000
53 No None No 2 352
54 No None Xx 0 000
00 Xx Xxxx No 1 135
56 No Hard No 1 178,992
No None Yes - C 1 570
57 No None Yes - C 1 301
58 No None Yes - C 1 196
59 No None Yes - C 1 73
60 No Hard No 1 84,694
61 No None No 2 198
62 No Hard No 1 237,976
63 No None No 1 150
64 No None No 1 108,863
65 No None No 1 160
66 No Hard No 1 364
67 No None No 2 45
68 Yes Hard No 1 71,502
69 No None No 1 144,895
70 No None No 1 192
71 No None No 2 42
72 No None No 1 113,732
73 No None No 2 381
74 No None Xx 0 000
00 Xx Xxxx No 1 168
76 No None No 1 67,137
77 Yes Soft at Closing, Springing Hard No 1 275,193
78 No None No 1 112
79 No None Xx 0 000
00 Xx Xxxx Xx 0 000
00 Xx Xxxx Xx 1 571
81.1 253
81.2 141
81.3 177
82 No None No 2 208
83 No None Xx 0 000
00 Xx Xxxx No 1 569,233
85 No None No 1 60,000
86 No None No 1 131
87 No None Xx 0 000
00 Xx Xxxx No 1 90
89 No None No 1 136,234
90 No None No 1 96
91 No Hard No 1 76,997
92 No None No 1 52,067
93 Yes None at Closing, Springing Hard No 1 124,782
94 No None No 1 141,575
95 No Hard No 1 29,390
96 No None No 1 143,332
97 No None No 2 293
98 No None No 1 56,590
99 No None No 1 126
100 No None at Closing, Springing Hard Xx 0 000
000 Xx Xxxx Xx 0 00
000 Xx Xxxx No 1 250
103 No Soft at Closing, Springing Hard No 1 58,473
104 No None No 2 125
105 No None No 1 27,017
106 No None No 1 55,813
107 No None No 1 92,873
108 No None Xx 0 00
000 Xx Xxxx No 1 60,258
110 No None at Closing, Springing Hard No 1 163,360
111 No None No 1 126
112 No None No 1 92,400
113 No None No 1 31,975
114 No None No 1 178,486
115 Yes Soft at Closing, Springing Hard No 1 144,952
116 No None Xx 0 000
000 Xx Xxxx Xx 0 64,820
117.1 34,470
117.2 30,350
118 No None No 1 16,236
119 No None No 1 100
120 No Hard No 1 51,707
121 No None No 1 58,125
122 No None No 1 79,505
123 No None No 1 191
124 No Hard No 1 5,400
125 No None No 2 128
126 No None No 1 18,430
127 No Soft at Closing, Springing Hard No 1 21,274
128 No None No 1 57,820
129 No None No 1 52,509
130 No None No 1 230
131 No None Xx 0 000
000 Xx Xxxx Xx 0 00
000 Xx Xxxx Xx 0 00
000 Xx Xxxx No 1 16,863
135 No None No 1 30,560
136 Yes Hard No 1 14,564
No None Yes - D 1 30,960
137 No None Yes - D 1 18,300
138 No None Yes - D 1 12,660
139 No None No 1 31,898
140 No None No 1 14,250
141 No Hard No 1 32,421
142 No None at Closing, Springing Hard No 1 12,596
143 No None No 1 16,205
144 No None No 2 114
145 No None No 2 149
146 Yes Hard No 1 14,564
147 No None Xx 0 00
000 Xx Xxxx No 1 39,504
149 No None No 1 136
150 No None No 1 47,337
151 No None Xx 0 00
000 Xx Xxxx No 1 11,060
153 No None No 2 129
154 No None Xx 0 00
000 Xx Xxxx No 1 10,594
156 No None No 1 168
EXHIBIT B-2
SERVICING FEE RATE SCHEDULE
Primary Master Trustee Subservicing Total
Annex ID Property Name Servicer Fee Servicer Fee Fee Rate Fee Rate Administrative Fee
-------- ------------- ------------ ------------ -------- -------- ------------------
1 Desert Passage 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
2 000 Xxxxx Xxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
3 Bon-Ton Department Stores Portfolio 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
3.1 Boston Store - Brookfield
3.2 Boston Store - Wauwatosa
3.3 Younkers - Green Bay
3.4 Xxxxxx Xxxxx Xxxxx - Xxxxxx
3.5 Xxxxxx Xxxxx Xxxxx - Joliet
3.6 Xxxxxx Xxxxx Xxxxx - Rockford
3.7 Herberger's - St. Xxxx
3.8 Younkers - Muskegon
3.9 Xxxxxxxxx'x - Xxxxx
3.10 Younkers - Eau Claire
3.11 Xxxxx-Xxxxxxx - Richmond
3.12 Xxxxx-Xxxxxxx - Xxxxxxxxxx
0 Xxxxxxx Xxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
5 Decoration & Design Building 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
6 Fiddler's Green Center 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
7 North Charlotte Office/Flex Portfolio 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
7.1 Xxxxxx Ridge
7.2 Northwoods Business Center
7.3 Northridge Business Center
7.4 Xxxxxx Corners
7.5 Northcross Business Campus
8 Galleria Corporate Centre 0.00000% 0.00000% 0.00080% 0.02000% 0.0208%
9 Wachovia Tower 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxxxxxxxxx Xxxxx Xxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
11 Windsor Lake Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxx Xxxxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
13 0000 Xxx Xxxxxx XX 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
Sandalwood Portfolio
14 Sandalwood - Xxxxxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxxx - Xxxx xx Xxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxxx - Xxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
17 Sandalwood - Cimarron Crossing 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxxx - Xxxxxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
19 Sandalwood - Sundance 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxxx - Xxxxxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxxx - Xxxxxxxxx Oaks 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxx Xxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxxxxxx Xxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
24 Towne Center at Brookhill 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxx Xxxxx Xxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
27 Blue Xxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
28 Xxxxxxx Theater 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
29 Xxxxxx Properties - LGA 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
29.1 LGA Courtyard by Marriott
29.2 Avistar Lease
30 Mission Charlotte Apartments 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
30.1 Mission Harris Houston Apartments
30.2 Mission Xxxxxx Xxxx Apartments
30.3 Mission Landings Apartments
00 Xxxxx Xxxxx / Xxxxxx Xxxxxxx 0.00000% 0.01000% 0.00080% 0.10000% 0.1108%
00 000 Xxxxxxxx Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
34 Verandas at Blairstone 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxx xx Xxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxx Xxxxxxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
37 Budco Headquarters 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 000 Xxxx Xxxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
39 On The Fairways Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx on Sand Key 0.00000% 0.00000% 0.00080% 0.03000% 0.0308%
41 Shoreline Village 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
42 NL Ventures 0.00000% 0.00000% 0.00080% 0.03000% 0.0308%
42.1 The United Fixtures Building
42.2 The Xxxxxxx Property
42.3 XX Xxxxx Xxxxx - The Xxxxx Plant
42.4 XX Xxxxx Xxxxx - The Xxxxx Spinning Plant
42.5 XX Xxxxx Xxxxx - The Xxxxxx Plant
42.6 XX Xxxxx Xxxxx - The National Plant
42.7 XX Xxxxx Xxxxx - The Corporate Office Building
42.8 XX Xxxxx Xxxxx - The Chattanooga Plant
43 One North Arlington 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
44 1325 & 0000 Xxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
45 313 & 000 Xxxxxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
46 Shadow Ridge Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxx Xxxxxx Xxxxxxxxxx 0.00000% 0.00000% 0.00080% 0.03000% 0.0308%
Xxxxxx Portfolio
48 Community Medical Building 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxxxxx Xxxxxxx Xxxxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxx Xxxxxx Xxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
51 Elmwood Self Storage 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
52 000 Xxxxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxxxx Xxxxxx Xxxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxx Xxxxx XXX 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
55 WXH - Courtyard Roanoke 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
56 The Equitable Building 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
Xxxxx MHC Crossed Pool
57 Xxxxx MHC Portfolio - 3 Terrace Acres 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxx XXX Xxxxxxxxx - 0 Lincoln 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
59 Xxxxx MHC Portfolio - 1 Belle Aire 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
60 Thomson Information Services 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
62 0000 Xxxxxxxx Xxxxxx Xxxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
63 WXH - Homewood Suites Cary 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxx Xxxxxx Xxxxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
65 WXH - Courtyard Xxx Arbor 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 0 Xxxx Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
67 000 Xxxxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 Xxxx Xxxx Xxxxxxx Xxxxxx 0.00000% 0.00000% 0.00080% 0.03000% 0.0308%
69 Tri-Cities Professional Center 0.01000% 0.01000% 0.00080% 0.05000% 0.0708%
70 Holiday Inn Select Memphis 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
71 000 Xxxxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
72 Self Storage Plus-Eisenhower 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxxx Xxxxxxx MHP 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
00 XXX - Xxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
75 WXH - Quality Suites Charleston 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
76 Xxxxx Fargo Financial Center 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxxx Xxxxx 0.00000% 0.00000% 0.00080% 0.03000% 0.0308%
78 WXH - Homewood Suites Xxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxx Xxxxxx Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
80 WXH - Hampton Inn Duluth 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxx Xxxxxxx XXX Xxxxxxxxx - Xxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
81.1 Valley Hills
81.2 Summit Park
81.3 Mobile Manor
82 Creekwood Apartments 0.00000% 0.01000% 0.00080% 0.07000% 0.0808%
83 Xxxxxxxx Villas Apartments 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
84 Wyoming Industrial Center 0.01000% 0.01000% 0.00080% 0.03000% 0.0508%
00 Xxxxxxx & Xxxxxxxx Xxxxxxxx - Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
86 WXH - Hampton Inn 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 Xxxxxxx Xxx Xxxxxxx - Xxxxxx Xxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
88 Residence Inn Memphis 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
89 Killeen Power Center 0.01000% 0.01000% 0.00080% 0.05000% 0.0708%
00 XXX - Xxxxxxxx Xxxxxx Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
91 Crossroads at Citadel 0.00000% 0.00000% 0.00080% 0.05000% 0.0508%
92 Centennial Center 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
93 Securlock at the Colony 0.01000% 0.01000% 0.00080% 0.05000% 0.0708%
94 Eastport 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
95 DaVita Medical Center 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
96 Breckinridge Exchange 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
97 Hampton Green Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
98 Self Storage Plus-Annapolis 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
00 XXX - Xxxxxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
100 Days Inn Horsham 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
000 XXX - Xxxxxxxx Xxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxxxxx - Xxxxx Xxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxxx Xxxxxxxx Xxxxxx-Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
104 Oakmont Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxxxx Xxxxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
106 The Drexel Building 0.00000% 0.00000% 0.00080% 0.05000% 0.0508%
000 Xxxxxxxxxxx Xxxxxx Xxxx 0.00000% 0.01000% 0.00080% 0.06000% 0.0708%
108 Hampton Inn & Suites 0.00000% 0.01000% 0.00080% 0.07000% 0.0808%
000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
110 Grafco Building 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 XXX - Xxxxxxxx Xxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxx xxx Xxxxxxxxx- Xxxxxxx, XX 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
113 Scripps Medical Clinic 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxx Xxxx 0.00000% 0.00000% 0.00080% 0.05000% 0.0508%
000 Xxxxxx Xxxx XXX 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxx Xxxxxxx Portfolio 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
117.1 Xxxxxxx Shopping Center
117.2 Gateway Commons Shopping Center
000 Xxxxxxxx Xxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
000 Xxxxxxx Xxx - Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxx Xxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
121 Devon Self Storage - Edgewood 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
122 Southside Self Storage 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
123 Springfield Farms 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
124 0000-0000 Xxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
000 Xxxxxxxxxx Xxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxx xx Xxxxxxx Shops 0.00000% 0.01000% 0.00080% 0.06000% 0.0708%
127 Xxxxxxxxxxx Corners 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
128 Xxxxxx Valley Hayward Storage 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxx Xxxxxx Office 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
130 Coachland MHC and RV Park 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
131 Radisson Orlando 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxx Xxxxx XXX 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxx Xxx - Xxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
134 Los Coyotes Center 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
135 Xxxxxx Center 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
136 Rite Aid Toledo 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
Xxxxxxxxxx Xxxxxx Xxxxxxxxx
000 Xxxxx Xxxxxx Shops 0.00000% 0.01000% 0.00080% 0.06000% 0.0708%
138 Grand Slam for Xxxxx Bridge Shops 0.00000% 0.01000% 0.00080% 0.06000% 0.0708%
000 Xxxxx Xxxxx Xxxxxx Xxxxxx I 0.00000% 0.01000% 0.00080% 0.05000% 0.0608%
000 Xxxxxxxxx-Xxxxxxxxxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
141 00000 Xxxxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
000 Xxxxx Xxxxxx 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
143 Dallas Shops 0.00000% 0.01000% 0.00080% 0.06000% 0.0708%
144 Picture Ranch MHC 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxx Xxxxx MHC 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
146 Rite Aid Grafton 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
147 Diablo Villas Apartments 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxx Xxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
149 Grand View Apartments 0.00000% 0.01000% 0.00080% 0.03000% 0.0408%
150 A Self Storage Center 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxx Xxxxx Xxxxxxx MHC 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
152 Rite Aid Drugstore 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
000 Xxxxxxxxx Xxxxxxx MHC 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
154 Xxxxxx Apartments 0.01000% 0.01000% 0.00080% 0.08000% 0.1008%
155 CVS Oklahoma City 0.02000% 0.01000% 0.00080% 0.00000% 0.0308%
000 Xxxxxx XX Xxxx Xxxxx 0.01000% 0.01000% 0.00080% 0.00000% 0.0208%
EXHIBIT C-1
FORM OF TRANSFEREE AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
, being first duly sworn, deposes and
says:
1. That he/she is a of (the "Purchaser"), a duly organized and
existing under the laws of the State of on behalf of which he/she makes this
affidavit.
2. That the Purchaser's Taxpayer Identification Number is .
3. That the Purchaser of the Commercial Mortgage Pass-Through
Certificates, COMM 2006-C7, Class [R] [LR] (the "Class [R] [LR] Certificate") is
a Permitted Transferee (as defined in Article I of the Pooling and Servicing
Agreement dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by Deutsche Mortgage & Asset Receiving Corporation, as depositor,
Midland Loan Services, Inc., as the master servicer with respect to all of the
Mortgage Loans other than the Desert Passage Loan, CWCapital Asset Management
LLC, as special servicer with respect to all of the Mortgage Loans other than
the Desert Passage Loan, and Xxxxx Fargo Bank, N.A., as trustee and paying
agent, or is acquiring the Class [R] [LR] Certificate for the account of, or as
agent (including as a broker, nominee, or other middleman) for, a Permitted
Transferee and has received from such person or entity an affidavit
substantially in the form of this affidavit.
4. That the Purchaser historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Purchaser will not transfer the Class [R] [LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit or as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3,
paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has
reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is
not purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the restrictions on
transfer of the Class [R] [LR] Certificate to such a "disqualified
organization," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4, paragraph 7 and paragraph 11 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [the Upper-Tier REMIC] [the Lower-Tier REMIC], the Purchaser
agrees to act as "tax matters person" and to perform the functions of "tax
matters partner" of the [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant
to Section 4.04 of the Pooling and Servicing Agreement, and agrees to the
irrevocable designation of the Trustee as the Purchaser's agent in performing
the function of "tax matters person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the
provisions of Section 5.02 of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [LR] Certificate.
11. The Purchaser agrees not to transfer the Class [R] [LR]
Certificate such that the income therefrom would be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of the Purchaser or any other U.S. Person.
12. Check the applicable paragraph:
[ ] The present value of the anticipated tax liabilities associated with
holding the Class [R] [LR] Certificate, as applicable, does not exceed
the sum of:
(i) the present value of any consideration given to the Purchaser to
acquire such Class [R] [LR] Certificate;
(ii) the present value of the expected future distributions on such
Certificate; and
(iii) the present value of the anticipated tax savings associated with
holding such Class [R] [LR] Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Purchaser has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Purchaser.
[ ] The transfer of the Class [R] [LR] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from the Class [R] [LR] Certificate will only be taxed in the United
States;
(ii) at the time of the transfer, and at the close of the Purchaser's two
fiscal years preceding the year of the transfer, the Purchaser had
gross assets for financial reporting purposes (excluding any
obligation of a person related to the Purchaser within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the Class [R] [LR] Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
and
(iv) the Purchaser determined the consideration paid to it to acquire the
Class [R] [LR] Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Purchaser)
that it has determined in good faith.
[ ] None of the above.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its __________________________________ this ____ day
of _______, 20___.
[Purchaser]
By: _________________________________
Name:
Title:
Personally appeared before me the above-named ___________________ ,
known or proved to me to be the same person who executed the foregoing
instrument and to be the______________________________ of the Purchaser, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Purchaser.
Subscribed and sworn before me this ___ day of _______, 20___.
______________________________________
NOTARY PUBLIC
COUNTY OF ____________________________
STATE OF _______________________________
My commission expires the day of , 200 .
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
Xxxxx Fargo Bank, N.A.,
as Trustee and Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Commercial Mortgage Pass-Through Certificates, COMM 2006-C7, Class
[R][LR]
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true or that [Transferee]
is not a Permitted Transferee (as defined in the Pooling and Servicing Agreement
defined in the attached affidavit) and has no actual knowledge or reason to know
that the information contained in paragraphs 4, 7 and 11 thereof is not true.
Very truly yours,
[Transferor]
By: __________________________________
Name:
Title:
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank, N.A.,
as Trustee and Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 0000-X0
Xxxxxxxx Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Transfer of Commercial Mortgage Pass-Through
Certificates, COMM 2006-C7: Class [X][D][E]
[F][G][H][J][K][L][M][N][O][P][S][R][LR]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), entered into by Deutsche Mortgage & Asset Receiving Corporation, as
depositor, Midland Loan Services, Inc., as the master servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Special
Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and paying
agent, on behalf of the holders of Commercial Mortgage Pass-Through
Certificates, COMM 2006-C7 (the "Certificates") in connection with the transfer
by (the "Seller") to the undersigned (the "Purchaser") of [$___ aggregate
Certificate Balance][_% Percentage Interest] of Class
[X][D][E][F][G][H][J][K][L][M][N][O][P][S][R][LR] Certificates, in certificated
fully registered form (such registered interest, the "Certificate"). Terms used
but not defined herein shall have the meanings ascribed thereto in the Pooling
and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser is an
institutional investor and an "accredited investor" (an entity meeting the
requirements of Rule 501 (a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "1933 Act")) and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the investment in the Certificate, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment. The Purchaser is acquiring the Certificate for its own account or
for one or more accounts (each of which is an "institutional accredited
investor") as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust for any costs
incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] 1. The Purchaser is a
"qualified institutional buyer" within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended (the "1933 Act"). The
Purchaser is aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information required to be
provided pursuant to paragraph (d)(4)(i) of Rule 144A.
[For Affiliated Persons only]. 1. The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of such a person,
as defined in Rule 405 of the Securities Act of 1933, as amended (the "1933
Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) institutional
"accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the 1933 Act, pursuant to any other
exemption from the registration requirements of the 1933 Act, subject in the
case of this clause (ii) to (a) the receipt by the Certificate Registrar of a
letter substantially in the form hereof, (b) the receipt by the Certificate
Registrar of an opinion of counsel acceptable to the Certificate Registrar that
such reoffer, resale, pledge or transfer is in compliance with the 1933 Act, (c)
the receipt by the Certificate Registrar of such other evidence acceptable to
the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act and other applicable laws, and (d) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. It understands that the Certificate (and any
subsequent Individual Certificate) has not been registered under the 1933 Act,
by reason of a specified exemption from the registration provisions of the 1933
Act which depends upon, among other things, the bona fide nature of the
Purchaser's investment intent (or intent to resell to only certain investors in
certain exempted transactions) as expressed herein.
3. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
4. The Purchaser has reviewed the Private Placement Memorandum dated
May 26, 2006 relating to the Certificates (the "Private Placement Memorandum")
and the agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement Memorandum.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
an Individual Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto. This
undertaking is made for the benefit of the Trust, the Certificate Registrar and
all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate, except in compliance with Section 5.02 of the Pooling and
Servicing Agreement.
7. Check one of the following:
[ ] The Purchaser is a "U.S. Person" and it has attached hereto an Internal
Revenue Service ("IRS") Form W-9 (or successor form).
[ ] The Purchaser is not a "U.S. Person" and under applicable law in effect
on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to Distributions to
be made on the Certificate(s). The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate(s) and states
that such Purchaser is not a U.S. Person, (ii) two duly executed copies
of IRS Form W-8IMY (and all appropriate attachment or (iii)]* two duly
executed copies of IRS Form W-8ECI (or successor form), which identify
such Purchaser as the beneficial owner of the Certificate(s) and state
that interest and original issue discount on the U.S. Securities is, or
is expected to be, effectively connected with a U.S. trade or business.
The Purchaser agrees to provide to the Certificate Registrar updated
[IRS Form W-8BEN, IRS Form W-8IMY or]* IRS Form W-8ECI[, as the case
may be]*, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably request, on
or before the date that any such IRS form or certification expires or
becomes obsolete, or promptly after the occurrence of any event
requiring a change in the most recent IRS form of certification
furnished by it to the Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership (except to the
extent provided in applicable Treasury Regulations) or other entity created or
organized in or under the laws of the United States or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States fiduciaries have the authority to control
all substantial decisions of such trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20, 1996
which are eligible to elect to be treated as U.S. Persons).
Please make all payments due on the Certificates:**
(a) by wire transfer to the following account at a bank or entity in New
York, New York, having appropriate facilities therefor:
Account number:________________________
Institution:___________________________
(b) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
_______________________________________
[The Purchaser]
By:____________________________________
Name:
Title:
Dated:
-------------------------
* Delete for Class R and Class LR.
** Only to be filled out by Purchasers of Individual Certificates. Please select
(a) or (b).
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
[Date]
Xxxxx Fargo Bank, N.A.,
as Trustee and Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 0000-X0
Xxxxxxxx Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Re: Commercial Mortgage Pass-Through Certificates, COMM
2006-C7, Class [J][K][L][M][N][O][P][S][R][LR]
Ladies and Gentlemen:
(the "Purchaser") intends to
purchase from (the "Seller") $ initial Certificate Balance or % Percentage
Interest of Commercial Mortgage Pass-Through Certificates, COMM 2006-C7, Class
[J][K][L][M][N][O][P][S][R][LR], CUSIP No. [_________] (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement dated as of June 1, 2006
(the "Pooling and Servicing Agreement"), entered into by Deutsche Mortgage &
Asset Receiving Corporation, as depositor, Midland Loan Services, Inc., as the
master servicer with respect to all of the Mortgage Loans other than the Desert
Passage Loan (the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer with respect to all of the Mortgage Loans other than the Desert Passage
Loan (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"). All capitalized terms used herein and not otherwise defined shall
have the meaning set forth in the Pooling and Servicing Agreement. The Purchaser
hereby certifies, represents and warrants to, and covenants with, the Depositor,
the Certificate Registrar and the Trustee that:
1. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Xxxxx
plan, which is subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), Section 4975 of the Code, a governmental plan, as defined
in Section 3(32) of ERISA, or other plan subject to any federal, state or local
law ("Similar Law") which is to a material extent similar to the foregoing
provisions of ERISA or the Code (each, a "Plan"), or (b) a collective investment
fund in which such Plans are invested, an insurance company using assets of
separate accounts or general accounts which include assets of Plans (or which
are deemed pursuant to ERISA or any Similar Law to include assets of Plans) or
other Person acting on behalf of any such Plan or using the assets of any such
Plan, other than (except in the case of the Class S, Class R and Class LR
Certificates) an insurance company using the assets of its general account under
circumstances whereby such purchase and the subsequent holding of such
Certificate by such insurance company would be exempt from the prohibited
transaction provisions of Section 406 and 407 of ERISA and Section 4975 of the
Code under Sections I and III of PTCE 95-60, or a substantially similar
exemption under Similar Law; and
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class S, Class R or
Class LR Certificates, which may not be transferred unless the transferee
represents it is not such a Person, such Purchaser is required to provide to the
Depositor, the Trustee and the Certificate Registrar any Opinions of Counsel,
officers' certificates or agreements as may be required by such Persons, and
which establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase and holding of the Certificates by or on
behalf of a Plan will not constitute or result in a non-exempt prohibited
transaction within the meaning of Section 406 and Section 407 of ERISA or
Section 4975 of the Code or any corresponding provision of any Similar Law, and
will not subject the Depositor, the Trustee, the Master Servicer, the Special
Servicer or the Certificate Registrar to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or Similar
Law), which Opinions of Counsel, officers' certificates or agreements shall not
be at the expense of the Master Servicer, the Depositor, the Trustee or the
Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on this ____ day of _________, 20___.
Very truly yours,
[Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT E
REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Commercial Mortgage Pass-Through Certificates, COMM 2006-C7
Dear __________________:
In connection with the administration of the Mortgage Files held by,
or on behalf of, you as Custodian under a certain Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by Xxxxx Fargo Bank, N.A., as trustee and paying agent, Deutsche
Mortgage & Asset Receiving Corporation, as depositor, Midland Loan Services,
Inc., as the master servicer with respect to all of the Mortgage Loans other
than the Desert Passage Loan (the "Master Servicer"), and CWCapital Asset
Management LLC, as special servicer with respect to all of the Mortgage Loans
other than the Desert Passage Loan, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by you as
Custodian with respect to the following described Mortgage Loan for the reason
indicated below:
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested,
please specify which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full. Such [Master
Servicer] [Special Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be, following such [Master
Servicer's] [Special Servicer's] release of the Mortgage File, credited to the
Certificate Account pursuant to the Pooling and Servicing Agreement.
_____ 2. The Mortgage Loan is being foreclosed.
_____ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By: ___________________________________
Name: ______________________________
Title:______________________________
cc: Xxxxx Fargo Bank, N.A.
as Trustee
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
EXHIBIT F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST TWO PAGES OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT D-1 TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN INSTITUTIONAL
ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
EXHIBIT G
FORM OF REGULATION S TRANSFER CERTIFICATE
Xxxxx Fargo Bank, N.A.,
as Paying Agent and Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Transfer of COMM 2006-C7, Commercial Mortgage Pass-Through
Certificates, Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), entered into by Deutsche Mortgage & Asset Receiving
Corporation, as depositor, (the "Depositor") Midland Loan Services, Inc., as the
master servicer with respect to all of the Mortgage Loans other than the Desert
Passage Loan (the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer with respect to all of the Mortgage Loans other than the Desert Passage
Loan (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee") and paying agent, on behalf of the holders of the COMM 2006-C7,
Commercial Mortgage Pass-Through Certificates, Class [___] (the "Certificates")
in connection with the transfer by the undersigned (the "Transferor") to
______________ (the "Transferee") of $___________________ Certificate Balance of
Certificates, in fully registered form (each, an "Individual Certificate"), or a
beneficial interest of such aggregate Certificate Balance in the Regulation S
Global Certificate (the "Global Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
[(2) at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the United States;]*
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither there undersigned nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States;]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
______________________________________
Transferor
By: __________________________________
Name:
Title:
Dated: ________________, 20__
-------------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to Section 5.02(c)(ii)(A) of
the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.,
as Trustee and Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Transfer of COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of June 1, 2006, (the "Pooling and Servicing Agreement"), entered into
by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor") Midland Loan Services, Inc., as the master servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Special
Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and paying
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
This letter relates to US $[______________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of Rule
144A Global Certificate (CUSIP No. _____________) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest for an interest in the
Regulation S Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (Common Code) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the Transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the Transferee was outside the United States,]**
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: ________________________, 20__
-------------------------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A.,
as Trustee and Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Transfer of COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), entered into
by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor"), Midland Loan Services, Inc., as the master servicer with respect
to all of the Mortgage Loans other than the Desert Passage Loan (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Special
Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and paying
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
The letter relates to U.S. $[_____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Rule 144A Global Certificate (CUSIP No. _________) with the Depository in the
name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation S Global Certificate (Common Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States,]*
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was pre-arranged with a
buyer in the United States,]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable, and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: _______________, 20___
-------------------------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to Section 5.02(c)(ii)(C)
of the Pooling and Servicing Agreement)
Xxxxx Fargo Bank, N.A
as Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Transfer of COMM 2006-C7 Commercial Mortgage Pass-Through
Certificates, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), entered into
by Deutsche Mortgage Asset & Receiving Corporation, as depositor, (the
"Depositor"), Midland Loan Services, Inc., as the master servicer with respect
to all of the Mortgage Loans other than the Desert Passage Loan (the "Master
Servicer"), CWCapital Asset Management LLC, as special servicer with respect to
all of the Mortgage Loans other than the Desert Passage Loan (the "Special
Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee") and paying
agent. Capitalized terms used but not defined herein shall have the meanings
given to them in the Pooling and Servicing Agreement.
This letter relates to U.S. $[____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Regulation S Global Certificate (CUSIP No. ____________) with [Euroclear]
[Clearstream]* (Common Code _________) through the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Certificates for an interest in the
Regulation 144A Global Certificate (CUSIP No. ___________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is "qualified
institutional buyer" within the meaning of Rule 144A, in each case in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or an jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Master Servicer
and the Special Servicer.
[Insert Name of Transferor]
By: __________________________________
Name:
Title:
Dated: ______________, 20__
--------------------------------
* Select appropriate depositary.
EXHIBIT K
FORM OF DISTRIBUTION DATE STATEMENT
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
DISTRIBUTION DATE STATEMENT
Table of Contents
-----------------------------------------------------------
STATEMENT SECTIONS PAGE(s)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 16
Mortgage Loan Detail 17
NOI Detail 18
Principal Prepayment Detail 19
Historical Detail 20
Delinquency Loan Detail 21
Specially Serviced Loan Detail 22 - 23
Modified Loan Detail 24
Liquidated Loan Detail 25
Bond / Collateral Realized Loss Reconciliation 26
Defeased Loan Detail 27
Supplemental Reporting 28
-------------------------------------------------------------------------------
Depositor Master Servicer Special Servicer
-------------------------------------- ------------------------------------------- --------------------------------------
Deutsche Mortgage & Asset Receiving Midland Loan Services, Inc. CWCapital Asset Management LLC.
Corp. 00000 Xxxxxx Xxxxxx, Xxxxxxxx 00 0000 Xxxxxxxxxxxx Xxxxxx, XX
00 Xxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000 Suite 400
New York, NY 06927 Xxxxxxxxxx, XX 00000-0000
Contact: Xxxxxxx X. Xxxxxx Contact: Xxxx Xxxxxx Contact: Xxxxxxxx Xxxx
Phone Number: (000) 000-0000 Phone Number: (000) 000-0000 Phone Number: (000) 000-0000
-------------------------------------- ------------------------------------------- --------------------------------------
This report has been compiled from information provided to Xxxxx Fargo Bank, N.A. by various third parties, which may include the
Master Servicer, Special Servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the accuracy of information
received from these third parties and assumes no duty to do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for
the accuracy or completeness of information furnished by third parties.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 1 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Distribution Detail
-----------------------------------------------------------------------------------------------------------------------------------
Realized Loss / Current
Pass-Through Original Beginning Principal Interest Prepayment Additional Trust Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Fund Expenses Distribution Balance Level(1)
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
S 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
LR 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
----------------------------------------------------------------------------------------------
X 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00
----------------------------------------------------------------------------------------------
(1) Calculated by taking (A) the sum of the ending certificate balance of all classes less (B) the sum of (i) the ending
balance of the designated class and (ii) the ending certificate balance of all classes which are not subordinate
to the designated class and deviding the result by (A).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 2 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Certificate Factor Detail
--------------------------------------------------------------------------------------------------------------
Realized Loss /
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
--------------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-AB 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-1A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
S 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
LR 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
--------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
---------------------------------------------------------------------------
X 0.00000000 0.00000000 0.00000000 0.00000000
---------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Reconciliation Detail
Advance Summary Servicing Fee Summary
P & I Advances Outstanding 0.00 Current Period Accrued Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Servicing Fees on Delinquent Payments 0.00
Less Reductions to Servicing Fees 0.00
Reimbursement for Interest on P & I 0.00
Advances paid from general collections Plus Servicing Fees for Delinquent Payments Received 0.00
Plus Adjustments for Prior Servicing Calculation 0.00
Reimbursement for Interest on Servicing 0.00
Advances paid from general collections Total Servicing Fees Collected 0.00
Certificate Interest Reconciliation
-------------------------------------------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable Additional
Accrual Certificate Prepayment Certificate Certificate Interest WAC CAP Trust Fund Interest
Class Days Interest Interest Shortfall Interest Adjustment Shortfall Expenses Distribution
-------------------------------------------------------------------------------------------------------------------------------
A-1 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-AB 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-1A 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
N 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
O 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-------------------------------------------------------------------------------------------------------------------------------
Certificate Interest Reconciliation
----------------------------
Remaining Unpaid
Distributable
Class Certificate Interest
----------------------------
A-1 0.00
A-2 0.00
A-3 0.00
A-AB 0.00
A-4 0.00
A-1A 0.00
A-M 0.00
A-J 0.00
B 0.00
C 0.00
D 0.00
E 0.00
F 0.00
G 0.00
H 0.00
J 0.00
K 0.00
L 0.00
M 0.00
N 0.00
O 0.00
P 0.00
Q 0.00
X 0.00
----------------------------
Totals 0.00
----------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Other Required Information
--------------------------------------------------------------------------------
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Stand-by Fee 0.00
Aggregate Paying Agent Fee 0.00
Aggregate Trust Fund Expenses 0.00
Additional Trust Fund Expenses/(Gains) 0.00
Fees Paid to Special Servicer 0.00
Interest on Advances 0.00
Other Expenses of Trust 0.00
Appraisal Reduction Amount
-------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Amount Amount Date
-------------------------------------------------
-------------------------------------------------
Total
-------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Cash Reconciliation Detail
---------------------------------------------------------------------------------------------------------------------------------
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
--------------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
--------------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
--------------
Total Other Collected 0.00
--------------
Total Funds Collected 0.00
==============
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
--------------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
--------------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
--------------
Total Payments to Certificateholders & Others 0.00
--------------
Total Funds Distributed 0.00
==============
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 6 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Ratings Detail
---------------------------------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
------------------------------------------------------------------------------
Class CUSIP Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
---------------------------------------------------------------------------------------------------------------
X-0
X-0
X-0
X-XX
X-0
A-1A
A-M
A-J
B
C
D
E
F
G
H
J
K
L
M
N
O
P
Q
X
---------------------------------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of original issuance.
X - Designates that the above rating agency did not rate any classes in this transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular rating agency, no request has been made
subsequent to issuance to obtain rating information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date listed above. The ratings may have changed since
they were obtained. Because the ratings may have changed, you may want to obtain current ratings directly from the rating
agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 7 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 9 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Aggregate Pool
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset level. In
all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the Servicer,
information from the offering document is used. The Trustee makes no representations as to the accuracy of the data provided by
the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the Cut-off
Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group I
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Trustee makes no representations as to the accuracy of the
data provided by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of
the Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon
the Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Scheduled Balance State (3)
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Scheduled # of Scheduled Agg. WAM Weighted # of Scheduled Agg. WAM Weighted
Balance Loans Balance Bal. (2) WAC Avg DSCR (1) State Props Balance Bal. (2) WAC Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Debt Service Coverage Ratio Property Type (3)
---------------------------------------------------------------- ----------------------------------------------------------------
Debt Service % of % of
Coverage # of Scheduled Agg. WAM WAC Weighted Property # of Scheduled Agg. WAM WAC Weighted
Ratio Loans Balance Bal. (2) Avg DSCR (1) Type Props Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Note Rate Seasoning
---------------------------------------------------------------- ----------------------------------------------------------------
% of % of
Note # of Scheduled Agg. WAM WAC Weighted # of Scheduled Agg. WAM WAC Weighted
Rate Loans Balance Bal. (2) Avg DSCR (1) Seasoning Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
See footnotes on last page of this section.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Current Mortgage Loan and Property Stratification Tables
Group II
Anticipated Remaining Term (ARD and Balloon Loans) Remaining Stated Term (Fully Amortizing Loans)
---------------------------------------------------------------- ----------------------------------------------------------------
Anticipated % of Remaining % of
Remaining # of Scheduled Agg. WAM WAC Weighted Stated # of Scheduled Agg. WAM WAC Weighted
Term (2) Loans Balance Bal. (2) Avg DSCR (1) Term Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining Amortization Term (ARD and Balloon Loans) Age of Most Recent NOI
---------------------------------------------------------------- ----------------------------------------------------------------
Remaining % of % of
Amortization # of Scheduled Agg. WAM WAC Weighted Age of Most # of Scheduled Agg. WAM WAC Weighted
Term Loans Balance Bal. (2) Avg DSCR (1) Recent NOI Loans Balance Bal. (2) Avg DSCR (1)
---------------------------------------------------------------- ----------------------------------------------------------------
---------------------------------------------------------------- ----------------------------------------------------------------
Totals Totals
---------------------------------------------------------------- ----------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures become available from borrowers on an asset
level. In all cases, the most recent DSCR provided by the Servicer is used. To the extent that no DSCR is provided by the
Servicer, information from the offering document is used. The Paying Agent makes no representations as to the accuracy of
the data provided by for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the term from the current month to the earlier of the
Anticipated Repayment Date, if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current loan information to the properties based upon the
Cut-off Date balance of each property as disclosed in the offering document.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Loan Detail
---------------------------------------------------------------------------------------------------------------------------
Anticipated Neg. Beginning Ending Paid
Loan Property Interest Principal Gross Repayment Maturity Amort Scheduled Scheduled Thru
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N) Balance Balance Date
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------
Appraisal Appraisal Res. Mod.
Loan Reduction Reduction Strat. Code
Number Date Amount (2) (3)
---------------------------------------------
---------------------------------------------
Totals
---------------------------------------------
--------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Amortization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
NOI Detail
-----------------------------------------------------------------------------------------------------------------------------------
Ending Most Most Most Recent Most Recent
Loan Property Scheduled Recent Recent NOI Start NOI End
Number ODCR Type City State Balance Fiscal NOI NOI Date Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Detail
------------------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Premium
Offering Document ------------------------------------------------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Percentage Premium Yield Maintenance Charge
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Historical Detail
------------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------------------------------------------------------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies aging categories.
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 20 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Delinquency Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P & I P & I Mortgage Strategy Servicing Foreclosure
Loan Number Cross-Reference Delinq. Date Advances Advances ** Loan (1) Code (2) Transfer Date Date
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------
Current Outstanding
Servicing Servicing Bankruptcy REO
Loan Number Advances Advances Date Date
--------------------------------------------------------------
--------------------------------------------------------------
Totals
--------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payment Not Received 0 - Current 4 - Assumed Scheduled Payment
But Still in Grace Period 1 - One Month Delinquent (Performing Matured Loan)
B - Late Payment But Less 2 - Two Months Delinquent 7 - Foreclosure
Than 1 Month Delinquent 3 - Three or More Months Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 21 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 1
---------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------
Net Remaining
Distribution Operating NOI Note Maturity Amortization
Date Income Date DSCR Date Date Term
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 22 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Specially Serviced Loan Detail - Part 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 23 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Modified Loan Detail
------------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification Post-Modification Pre-Modification Post-Modification
Number Cross-Reference Balance Balance Interest Rate Interest Rate
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Loan
Number Modification Date Modification Description
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 24 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Liquidated Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Final Recovery Offering Gross Proceeds Aggregate
Loan Determination Document Appraisal Appraisal Actual Gross as a % of Liquidation
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance Expenses *
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Current Total
-----------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Net Net Proceeds Repurchased
Loan Liquidation as a % of Realized by Seller
Number Proceeds Actual Balance Loss (Y/N)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Current Total
--------------------------------------------------------------------------------
Cumulative Total
--------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P & I advances and unpaid fees (servicing, trustee, etc.).
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 25 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Bond/Collateral Reallized Loss Reconciliation
------------------------------------------------------------------------------------------------------------------------------------
Beginning Amounts
Balance of Aggregate Prior Realized Covered by Over- Interest (Shortage)/
Distribution Prospectus the Loan at Realized Loss Loss Applied collateralization and Excesses applied to
Date Id Liquidation on Loans to Certificates other Credit Support other Credit Support
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Modification Additional
Adjustments/ (Recoveries)/ Current Realized Recoveries of (Recoveries)/Realized
Distribution Appraisal Reduction Expenses applied to Loss Applied to Realized Losses Loss Applied to
Date Adjustment Realized Losses Certificates Paid as Cash Certificate Interest
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 26 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Defeased Loan Detail
-----------------------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled
Loan Number Cross-Reference Balance Maturity Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 27 of 28
--------- ----------------------------------------------
|[XXXXX | | For Additional Information, please contact |
| FARGO | Deutsche Mortgage & Asset Receiving Corporation | CTSLink Customer Service |
| LOGO] | Commercial Mortgage Pass-Through Certificates | (000) 000-0000 |
--------- COMM 2006-C7 | Reports Available on the World Wide Web |
| @ xxx.xxxxxxx.xxx/xxxx |
Xxxxx Fargo Bank, N.A. ----------------------------------------------
Corporate Trust Services
0000 Xxx Xxxxxxxxx Xxxx Payment Date: 07/10/2006
Xxxxxxxx, XX 00000-0000 Determination Date: 07/03/2006 Record Date: 06/30/2006
-----------------------------------------------------------------------------------------------------------------------------------
Supplemental Reporting
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 28 of 28
EXHIBIT L
FORM OF INVESTOR CERTIFICATION
Dated:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: Commercial Mortgage Pass-Through Certificates, Series COMM 2006-C7
In accordance with the Pooling and Servicing Agreement, dated as of
June 1, 2006 (the "Agreement"), by and among Deutsche Mortgage & Asset Receiving
Corporation, as Depositor, Midland Loan Services, Inc., as the master servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Master Servicer"), CWCapital Asset Management LLC, as special servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee")
and paying agent. with respect to the above-referenced certificates (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class __ Certificates.
2. The undersigned is requesting access to the Trustee's internet
website containing certain information (the "Information") and/or is requesting
the information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making an
evaluation in connection with purchasing the related Certificates, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities or agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the Trustee, be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or of the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
[Certificate Owner or Prospective
Purchaser]
By:____________________________________
Title:_________________________________
Company: ______________________________
Phone:
EXHIBIT M
FORM OF SUB-SERVICER BACKUP CERTIFICATION
COMM 2006-C7 Mortgage Trust (the "Trust")
As contemplated by Section 10.08 of that certain pooling and
servicing agreement dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among Deutsche Mortgage and Asset Receiving Corporation, as
depositor (the "Depositor"), Midland Loan Services, Inc., as the master servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Master Servicer"), CWCapital Asset Management LLC as the special servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee")
and paying agent, [identify the certifying individual], a [_______________ ] of
[_____], a [_____] corporation (the "Sub-Servicer") as Sub-Servicer in
connection with the sub-servicing of one or more Mortgage Loans and/or Serviced
Whole Loans under the Pooling and Servicing Agreement, on behalf of the
Sub-Servicer, certify to [Name of Each Certifying Person for Xxxxxxxx-Xxxxx
Certification], the Depositor, the Master Servicer, the Trustee and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
(i) Based on our knowledge, with respect to the period ending
December 31, 20[__] (the "Relevant Period"), all servicing information and
all reports required to be submitted by the Sub-Servicer to the Trustee
pursuant to the Pooling and Servicing Agreement (the "Servicer Reports")
for inclusion in the annual report on Form 10-K for the Relevant Period
and inclusion in all reports on Form 8-K have been submitted by the
Sub-Servicer to the Trustee for inclusion in these reports;
(ii) Based on our knowledge, with respect to the Relevant Period,
all servicing information and all reports required to be submitted by the
Sub-Servicer to the Master Servicer pursuant to the sub-servicing
agreement between the Sub-Servicer and the Master Servicer (the
"Sub-Servicer Reports") have been submitted by the Sub-Servicer to the
Master Servicer;
(iii) Based on our knowledge, the information contained in the
Servicer Reports and Sub-Servicer Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period ending December 31, 20[__];
(iv) Based upon our knowledge and the annual compliance review
performed as required under Section [__] of the Sub-Servicing Agreement,
and except as disclosed in the compliance certificate delivered pursuant
to Section [__] of the Sub-Servicing Agreement, the Sub-Servicer has
fulfilled its obligations under the Sub-Servicing Agreement in all
material respects;
(v) [I am responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Servicing Agreement and based upon my
knowledge and the annual compliance reviews conducted in preparing the
servicer compliance statements for inclusion on Form 10-K pursuant Item
1123 of Regulation AB with respect to the Sub-Servicer, and except as
disclosed in the compliance certificate delivered by the Sub-Servicer
under Section [__] of the Sub-Servicing Servicing Agreement, the
Sub-Servicer has fulfilled its obligations under the Sub-Servicing
Servicing Agreement in all material respects];
(vi) I have disclosed to the accountants that are to deliver the
annual attestation report on assessment of compliance with the Relevant
Servicing Criteria in respect of the Sub-Servicer with respect to the
Trust's fiscal year _____ all information relating to the Sub-Servicer's
assessment of compliance with the Relevant Servicing Criteria, in order to
enable them to conduct a review in compliance with the standards for
attestation engagements issued or adopted by the PCAOB; and
(vii) All annual assessment reports required under Section [__] of
the Sub-Servicing Agreement and their related annual attestation reports
required to be provided to the Master Servicer, the Trustee and the
Depositor by the Sub-Servicer or any Servicing Function Participant
retained by the Sub-Servicer under or as contemplated by the Pooling and
Servicing Agreement and the Sub-Servicing Agreement have been provided
thereby. Based on my knowledge, all material instances of noncompliance
with the Relevant Servicing Criteria have been disclosed in such reports,
in each case based upon the annual attestation report provided by a
registered public accounting firm, after conducting a review in compliance
with the standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section [__]of the Sub-Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Sub-Servicing Agreement or, if not defined in the Sub-Servicing Agreement, then
the meanings set forth in the Pooling and Servicing Agreement.
Date: _________________________
[NAME OF SUB-SERVICER]
By: _____________________________
Name:
Title:
EXHIBIT N
FORM OF PURCHASE OPTION NOTICE
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services, COMM 2006-C7
Re: COMM 2006-C7
Commercial Mortgage Pass-Through Certificates
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement") dated as of June 1, 2006,
entered into by Deutsche Mortgage & Asset Receiving Corporation, as depositor
(the "Depositor"), Midland Loan Services, Inc., as the master servicer with
respect to all of the Mortgage Loans other than the Desert Passage Loan (the
"Master Servicer"), CWCapital Asset Management LLC, as special servicer with
respect to all of the Mortgage Loans other than the Desert Passage Loan (the
"Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee").
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Directing Certificateholder] [acquired its Purchase Option
from the Directing Certificateholder on ___________] [is the Special Servicer]
[acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(c) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Directing Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:_________________________________
Name:
Title:]
EXHIBIT O
FORM OF TRUSTEE BACKUP CERTIFICATION
COMM 2006-C7 Mortgage Trust (The "Trust")
The undersigned, __________, a __________ of XXXXX FARGO BANK, N.A., on behalf
of XXXXX FARGO BANK, N.A., as Trustee (the "Trustee") and Paying Agent, under
that certain pooling and servicing agreement, dated as of June 1, 2006, (the
"Pooling and Servicing Agreement") entered into by Deutsche Mortgage & Asset
Receiving Corporation (the "Depositor"), Midland Loan Services, Inc., as the
master servicer with respect to all of the Mortgage Loans other than the Desert
Passage Loan (the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer with respect to all of the Mortgage Loans other than the Desert Passage
Loan (the "Special Servicer"), and the Trustee, certify to [_______], Deutsche
Mortgage & Asset Receiving Corporation and its officers, directors and
affiliates, to the extent that the following information is within our normal
area of responsibilities and duties under the Pooling and Servicing Agreement,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[20___] (the "Annual Report"), and all reports on Form 10-D
containing statements to certificateholders filed in respect of
periods included in the year covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the Trust;
2. To the best of my knowledge, any information in the Reports prepared
or calculated by the Trustee (but not including any mortgage loan
information provided to the Trustee by the Master Servicer or
Special Servicer that was used as a basis for such preparations or
calculations), taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last
day of the period covered by the Annual Report;
3. To the best of my knowledge, all of the distribution, servicing and
other information provided to the Trustee by the Master Servicer and
the Special Servicer under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Trustee and based on my knowledge and the compliance reviews
conducted in preparing the Trustee compliance statements required
for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB,
and except as disclosed on any Reports, the Trustee has fulfilled
its obligations in all material respects under the Pooling and
Servicing Agreement; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the Trustee or any Servicing Function Participant retained by the
Trustee under or as contemplated by the Pooling and Servicing
Agreement have been provided thereby. Based on my knowledge, all
material instances of noncompliance with the Relevant Servicing
Criteria have been disclosed in such reports, in each case based
upon the annual attestation report provided by a registered public
accounting firm, after conducting a review in compliance with the
standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section 10.13 of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Pooling and Servicing Agreement.
Date: _________________________
XXXXX FARGO BANK, N.A.
_______________________________
[Signature]
[Title]
EXHIBIT P
FORM OF SERVICER BACKUP CERTIFICATION
COMM 2006-C7 Mortgage Trust (the "Trust")
I, [identify the certifying individual], a [_______________] of MIDLAND LOAN
SERVICES, INC., a Delaware corporation (the "Master Servicer") as Master
Servicer under that certain pooling and servicing agreement dated as of June 1,
2006 (the "Pooling and Servicing Agreement"), among Deutsche Mortgage and Asset
Receiving Corporation, as depositor (the "Depositor"), Midland Loan Services,
Inc., as the Master Servicer with respect to all of the Mortgage Loans other
than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset Management
LLC, as the Special Servicer with respect to all of the Mortgage Loans other
than the Desert Passage Loan and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee") and paying agent, on behalf of the Master Servicer, certify to [Name
of Certifying Person(s) for Xxxxxxxx-Xxxxx Certification], the Depositor, and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. Based on my knowledge, with respect to the period ending December
31, 20[__] (the "Relevant Period"), and assuming the accuracy of the
statements required to be made by the Special Servicer in the
special servicer backup certificate delivered by the Special
Servicer relating to the Relevant Period, all servicing information
and all reports required to be submitted by the Master Servicer to
the Trustee pursuant to Sections 3.13(a) and 3.13(c) of the Pooling
and Servicing Agreement (the "Servicer Reports") for inclusion in
the annual report on Form 10-K for the Relevant Period and inclusion
in all reports on Form 8-K have been submitted by the Master
Servicer to the Trustee for inclusion in these reports;
2. Based on my knowledge, and assuming the accuracy of the statements
required to be made by the Special Servicer in the special servicer
backup certificate delivered by the Special Servicer relating to the
Relevant Period, the information contained in the Servicer Reports,
taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the
period ending December 31, 20[__];
3. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based
upon my knowledge and the annual compliance reviews conducted in
preparing the servicer compliance statements required for inclusion
on Form 10-K pursuant to Item 1123 of Regulation AB with respect to
the Master Servicer, and except as disclosed in the compliance
certificate delivered by the Master Servicer under Section 10.11. of
the Pooling and Servicing Agreement, the Master Servicer has
fulfilled its obligations under the Pooling and Servicing Agreement
in all material respects;
4. I have disclosed to the accountants that are to deliver the annual
attestation report on assessment of compliance with the Relevant
Servicing Criteria in respect of the Master Servicer with respect to
the Trust's fiscal year _____ all information relating to the Master
Servicer's assessment of compliance with the Relevant Servicing
Criteria in order to enable them to conduct a review in compliance
with the standards for attestation engagements issued or adopted by
the PCAOB; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the Master Servicer or any Servicing Function Participant retained
by the Master Servicer (other than a Loan Seller Sub-Servicer) under
or as contemplated by the Pooling and Servicing Agreement have been
provided thereby. Based on my knowledge, all material instances of
noncompliance with the Relevant Servicing Criteria have been
disclosed in such reports, in each case based upon the annual
attestation report provided by a registered public accounting firm,
after conducting a review in compliance with the standards for
attestation engagements issued or adopted by the PCAOB, delivered
pursuant to Section 10.13 of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
Date: _________________________
MIDLAND LOAN SERVICES, INC.
By: _____________________________
Name:
Title:
EXHIBIT Q
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
COMM 2006-C7 Mortgage Trust (the "Trust")
I, [identify the certifying individual], a [_______________ ] of CWCAPITAL ASSET
MANAGEMENT LLC (the "Special Servicer") as Special Servicer with respect to all
of the Mortgage Loans other than the Desert Passage Loan under that certain
pooling and servicing agreement dated as of June 1, 2006 (the "Pooling and
Servicing Agreement"), among Deutsche Mortgage and Asset Receiving Corporation,
as depositor (the "Depositor"), Midland Loan Services, Inc., as the master
servicer with respect to all of the Mortgage Loans other than the Desert Passage
Loan (the "Master Servicer"), the Special Servicer and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee") and paying agent, on behalf of the Special Servicer,
certify to [Name of Certifying Person(s) for Xxxxxxxx-Xxxxx Certification], the
Depositor, and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. Based on my knowledge, with respect to the period ending December
31, 20[__] (the "Relevant Period"), all servicing information and
all required reports required to be submitted by the Special
Servicer to the Master Servicer, the Depositor or Trustee pursuant
to the Pooling and Servicing Agreement (the "Special Servicer
Reports") for inclusion in the annual report on Form 10-K for the
Relevant Period and inclusion in all reports on Form 8-K have been
submitted by the Special Servicer to the Master Servicer, the
Depositor or the Trustee, as applicable, for inclusion in these
reports;
2. Based on my knowledge, the information contained in the Special
Servicer Reports, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last
day of the period ending December 31, 20[__];
3. I am responsible for reviewing the activities performed by the
Special Servicer under the Pooling and Servicing Agreement and based
upon my knowledge and the annual compliance reviews conducted in
preparing the servicer compliance statements required in this report
under Item 1123 of Regulation AB with respect to the Special
Servicer, and except as disclosed in the compliance certificate
delivered by the Special Servicer under Section 10.11. of the
Pooling and Servicing Agreement, the Special Servicer has fulfilled
its obligations under the Pooling and Servicing Agreement in all
material respects;
4. I have disclosed to the accountants that are to deliver the annual
attestation report on assessment of compliance with the Relevant
Servicing Criteria in respect of the Special Servicer with respect
to the Trust's fiscal year _____ all information relating to the
Special Servicer assessment of compliance with the Relevant
Servicing Criteria, in order to enable them to conduct a review in
compliance with the standards for attestation engagements issued or
adopted by the PCAOB; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the Special Servicer or any Servicing Function Participant retained
by the Special Servicer under or as contemplated by the Pooling and
Servicing Agreement have been provided thereby. Based on my
knowledge, all material instances of noncompliance with the Relevant
Servicing Criteria have been disclosed in such reports, in each case
based upon the annual attestation report provided by a registered
public accounting firm, after conducting a review in compliance with
the standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section 10.13 of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Pooling and Servicing Agreement.
Date: _________________________
CWCAPITAL ASSET MANAGEMENT LLC
By:_____________________________
Name:
Title:
EXHIBIT R
FORM OF NOTIFICATION FROM CUSTODIAN
[DATE]
To the Persons Listed on the attached Schedule A
Re: Commercial Mortgage Pass-Through Certificates, Series COMM
2006-C7
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by Deutsche Mortgage & Asset Receiving Corporation, as Depositor,
Midland Loan Services, Inc., as the master servicer with respect to all of the
Mortgage Loans other than the Desert Passage Loan (the "Master Servicer",
CWCapital Asset Management LLC, as special servicer with respect to all of the
Mortgage Loans other than the Desert Passage Loan (the "Special Servicer") and
Xxxxx Fargo Bank, N.A., as Trustee and Paying Agent, the undersigned, as
Custodian, hereby notifies you that, based upon the review required under the
Pooling and Servicing Agreement, the Mortgage File for each Mortgage Loan set
forth on the attached defect schedule contains a document or documents which (i)
has not been executed or received, (ii) has not been recorded or filed (if
required), (iii) is unrelated to the Mortgage Loans identified in the Mortgage
Loan Schedule, (iv) appears not to be what they purport to be or has been torn
in any materially adverse manner or (v) is mutilated or otherwise defaced, in
each case as more fully described on the attached defect schedule.
The Custodian has no responsibility to determine, and expresses no
opinion with respect thereto, whether any document or opinion is legal, valid,
binding or enforceable, whether the text of any assignment or endorsement is in
proper or recordable form (except, if applicable, to determine if the Trustee is
the assignee or endorsee), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, whether a blanket
assignment is permitted in any applicable jurisdiction, or whether any Person
executing any document or rendering any opinion is authorized to do so or
whether any signature thereon is genuine.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
[SIGNATURE PAGE FOLLOWS]
XXXXX FARGO BANK, N.A.,
as Custodian
By:_____________________________
Name:
Title:
SCHEDULE A TO FORM OF NOTIFICATION FROM CUSTODIAN
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services, COMM 0000-X0
Xxxxxxxx Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Midland Loan Services, Inc.
10851 Xxxxxx, Building 82, 0xx Xxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
CWCapital Asset Management LLC
000 Xxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx (COMM 2006-C7)
Telecopy No.: (000) 000-0000
with a copy to:
CWCapital Asset Management LLC
One Xxxxxxx River Place, 00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxx (COMM 2006-C7)
Telecopy No.: (000) 000-0000
If to the German American Capital Corporation, as Mortgage Loan Seller, to:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to General Electric Capital Corporation, as Mortgage Loan Seller, to:
General Electric Capital Corporation
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Managing Director
Telecopy No.: (000) 000-0000
with copies to:
General Electric Capital Corporation
00000 Xxxxxx Xxxxxxx
Xxx Xxxx Xxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telecopy No.: (000) 000-0000
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxxx XxXxxx, Counsel
Telecopy No.: (000) 000-0000
If to Bank of America, National Association, as Mortgage Loan Seller, to:
Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxxx, Esq.
Assistant General Counsel
Bank of America Corporation
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
If to CWCapital Mortgage Securities III LLC, as Mortgage Loan Seller, to:
CWCapital Mortgage Securities III LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
CWCapital Mortgage Securities III LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
DEFECT SCHEDULE
EXHIBIT S-1
FORM OF CLOSING DATE TRUSTEE CERTIFICATION
June 7, 2006
Deutsche Mortgage & Asset Receiving Fitch, Inc.
Corporation Xxx Xxxxx Xxxxxx Xxxxx
00 Xxxx Xxxxxx 31st Floor
New York, New York 10005 Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc. German American Capital Corporation
10851 Xxxxxx, Xxxxxxxx 00, 0xx Xxxxx 00 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
CWCapital Asset Management LLC General Electric Capital Corporation
000 Xxxxxxx Xxxxxx, X.X. 000 Xxxx Xxxxxx
Xxxxx 000 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services, Bank of America, National Association
a division of The XxXxxx-Xxxx Companies, 000 Xxxxx Xxxxx Xxxxxx
Inc. NC1-027-22-03
00 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
CWCapital Mortgage Securities III LLC
Xxxxx Fargo Bank, N.A. One Xxxxxxx River Place
0000 Xxx Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxxxxxxx 00000
Re: Commercial Mortgage Pass-Through Certificates, Series COMM 2006-C7
In accordance with Section 2.01(b) of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Agreement") entered into by Deutsche
Mortgage & Asset Receiving Corporation, as Depositor, Midland Loan Services,
Inc., as the master servicer with respect to all of the Mortgage Loans other
than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset Management
LLC, as special servicer with respect to all of the Mortgage Loans other than
the Desert Passage Loan (the "Special Servicer") as and the undersigned, as
Trustee and Paying Agent, the Trustee hereby certifies that, with respect to
each Mortgage Loan listed on the Mortgage Loan Schedule attached hereto as
Schedule A, (a) the Trustee has in its possession all Notes, a copy of the
Mortgage, a copy of any related ground leases, the originals or copies of any
related letters of credit and the lenders title policy (original or copy or
marked-up title commitment marked as binding and countersigned by the title
company or its authorized agent either on its face (which may be a pro forma or
specimen title insurance policy which has been accepted or approved as binding
in writing by the related title insurance company) or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) or an appropriate lost note affidavit, and
(b) the foregoing documents delivered or caused to be delivered by the Mortgage
Loan Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face, appear to be executed and relate to such Mortgage Loan.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
[____________________]
Corporate Trust Officer
SCHEDULE A TO CLOSING DATE TRUSTEE CERTIFICATION
(MORTGAGE LOAN SCHEDULE)
EXHIBIT S-2
FORM OF POST-CLOSING TRUSTEE CERTIFICATION
[______] [__], 2006
Deutsche Mortgage & Asset Receiving Fitch, Inc,
Corporation Xxx Xxxxx Xxxxxx Xxxxx
00 Xxxx Xxxxxx 31st Floor
New York, New York 10005 Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc. German American Capital Corporation
10851 Xxxxxx, Xxxxxxxx 00, 0xx Xxxxx 00 Xxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
CWCapital Asset Management LLC 700 General Electric Capital Corporation
Twelfth Street, N.W. 000 Xxxx Xxxxxx
Xxxxx 000 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services, Bank of America, National Association
a division of The XxXxxx-Xxxx Companies, 000 Xxxxx Xxxxx Xxxxxx
Inc. NC1-027-22-03
00 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
CWCapital Mortgage Securities III LLC
Xxxxx Fargo Bank, N.A. One Xxxxxxx River Place
0000 Xxx Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxxxxxxx 00000
Re: Commercial Mortgage Pass-Through Certificates, Series COMM 2006-C7
In accordance with Section 2.01(b) of the Pooling and Servicing
Agreement, dated as of June 1, 2006 (the "Agreement") entered into by Deutsche
Mortgage & Asset Receiving Corporation, as Depositor, Midland Loan Services,
Inc., as the master servicer with respect to all of the Mortgage Loans other
than the Desert Passage Loan (the "Master Servicer"), CWCapital Asset Management
LLC, as special servicer with respect to all of the Mortgage Loans other than
the Desert Passage Loan (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee") and paying agent, the Trustee hereby certifies that,
with respect to each Mortgage Loan listed on the Mortgage Loan Schedule attached
hereto as Schedule A, (a) the Trustee has in its possession a copy of the
Mortgage, a copy of any related ground leases, the originals or copies of any
related letters of credit and the lenders title policy (original or copy or
marked-up title commitment marked as binding and countersigned by the title
company or its authorized agent either on its face (which may be a pro forma or
specimen title insurance policy which has been accepted or approved as binding
in writing by the related title insurance company) or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) and, with respect to hospitality
properties, a copy of the franchise agreement, an original or copy of the
comfort letter and any transfer documents with respect tot such comfort letter
and (b) the foregoing documents delivered or caused to be delivered by the
Mortgage Loan Sellers have been reviewed by it or by a Custodian on its behalf
and appear regular on their face, appear to be executed and relate to such
Mortgage Loan.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
[____________________]
Corporate Trust Officer
SCHEDULE A TO FORM OF POST-CLOSING TRUSTEE CERTIFICATION
(MORTGAGE LOAN SCHEDULE)
EXHIBIT T
FORM OF NOTICE TO THE TRUSTEE AND S&P FROM THE MASTER SERVICER REGARDING
DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans having a Stated Principal Balance of $20,000,000 or less or
having an aggregate Stated Principal Balance of 5% or less of all of the
Mortgage Loans (whichever is less), so long as of the date hereof such
Mortgage Loan is not one of the ten largest Mortgage Loans by Stated
Principal Balance
To: Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services, COMM 2006-C7
From: Midland Loan Services, Inc. (referred herein as "Master Servicer") in
its capacity as Master Servicer under the Pooling and Servicing Agreement
dated as of June 1, 2006 (the "Pooling and Servicing Agreement"), among the
Master Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and certain other
parties.
Date: _________, 20___
Re: Deutsche Mortgage & Asset Receiving Corporation, Commercial Mortgage
Pass-Through Certificates Series COMM 2006-C7 Mortgage Loan (the "Mortgage
Loan") heretofore secured by real property known as __________________.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF THE MASTER SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT AND THE SERVICING STANDARD
We hereby notify you and confirm that each of the following is true, subject to
those exceptions, if any, set forth on Exhibit A hereto, which exceptions the
Master Servicer has determined, consistent with the Servicing Standard, will
have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
1. The Borrower has consummated a defeasance of the Mortgage Loan of
the type checked below:
___ a full defeasance of the entire outstanding principal balance
($___________) of the Mortgage Loan; or
___ a partial defeasance of a portion ($________) of the Mortgage
Loan that represents ___% of the entire principal balance of the Mortgage Loan
($_________);
2. The defeasance was consummated on ____________, 20__.
3. The defeasance was completed in all material respects in
accordance with the conditions for defeasance specified in the Loan Documents
and in accordance with the Servicing Standard.
4. The defeasance collateral consists only of one or more of the
following: (i) direct debt obligations of the U.S. Treasury, (ii) direct debt
obligations of the Federal National Mortgage Association, (iii) direct debt
obligations of the Federal Home Loan Mortgage Corporation, or (iv) interest-only
direct debt obligations of the Resolution Funding Corporation. Such defeasance
collateral consists of securities that (i) if they include a principal
obligation, the principal due at maturity cannot vary or change, (ii) provide
for interest at a fixed rate and (iii) are not subject to prepayment, call or
early redemption.
5. After the defeasance, the defeasance collateral will be owned by
an entity (the "Defeasance Obligor") that: (i) is the original Borrower, (ii) is
a Single-Purpose Entity (as defined in the S&P Criteria), (iii) is subject to
restrictions in its organizational documents substantially similar to those
contained in the organizational documents of the original Borrower with respect
to bankruptcy remoteness and single purpose, (iv) has been designated as the
Defeasance Obligor by the originator of the Mortgage Loan pursuant to the terms
of the Loan Documents, or (v) has delivered a letter from Standard & Poor's
confirming that the organizational documents of such Defeasance Obligor were
previously approved by Standard & Poor's. The Defeasance Obligor owns no assets
other than defeasance collateral and (only in the case of the original Borrower)
real property securing one or more Mortgage Loans included in the pool under the
Pooling and Servicing Agreement (the "Pool").
6. If such Defeasance Obligor (together with its affiliates) holds
more than one defeased loan, it does not (together with its affiliates) hold
defeased loans aggregating more than $20 Million or more than five percent (5%)
of the aggregate certificate balance of the Certificates as of the date of the
most recent Paying Agent's Monthly Certificateholder Report received by the
Master Servicer (the "Current Report").
7. The defeasance documents require that the defeasance collateral
be credited to an eligible account (as defined in the S&P Criteria) that must be
maintained as a securities account by a securities intermediary that is at all
times an Eligible Institution (as defined in the S&P Criteria). The securities
intermediary may reinvest proceeds of the defeasance collateral only in
Permitted Investments (as defined in the Pooling and Servicing Agreement).
8. The securities intermediary is obligated to pay from the proceeds
of the defeasance collateral directly to the Master Servicer's collection
account, all scheduled payments on the Mortgage Loan or, in a partial
defeasance, not less than 125% of the portion of such scheduled payments
attributed to the allocated loan amount for the real property defeased (the
"Scheduled Payments").
9. The Master Servicer received written confirmation from an
independent certified public accountant stating that (i) revenues from the
defeasance collateral (without taking into account any earnings on reinvestment
of such revenues) will be sufficient to timely pay each of the Scheduled
Payments including the payment in full of the Mortgage Loan (or the allocated
portion thereof in connection with a partial defeasance) on its Maturity Date,
(ii) the revenues received in any month from the defeasance collateral will be
applied to make Scheduled Payments within four (4) months after the date of
receipt, (iii) the defeasance collateral is not subject to prepayment, call or
early redemption, and (iv) interest income from the defeasance collateral to the
Defeasance Obligor in any tax year will not exceed such Defeasance Obligor's
interest expense for the Mortgage Loan (or the allocated portion thereof in a
partial defeasance) for such year, other than in the year in which the Maturity
Date or Anticipated Repayment Date will occur, when interest income will exceed
interest expense.
10. The Master Servicer received opinions of counsel that, subject
to customary qualifications, (i) the defeasance will not cause the Trust to fail
to qualify as a REMIC for purpose of the Internal Revenue Code, (ii) the
agreements executed by the Mortgagor and the Defeasance Obligor in connection
with the defeasance are enforceable against them in accordance with their terms,
and (iii) the Trustee will have a perfected, first priority security interest in
the defeasance collateral.
11. The agreements executed in connection with the defeasance (i)
prohibit subordinate liens against the defeasance collateral, (ii) provide for
prepayment from sources other than the defeasance collateral of all fees and
expenses of the securities intermediary for administering the defeasance and the
securities account and all fees and expense of maintaining the existence of the
Defeasance Obligor, (iii) permit release of surplus defeasance collateral and
earnings on reinvestment to the Defeasance Obligor only after the Mortgage Loan
has been paid in full, (iv) include representations and/or covenants of the
Mortgagor and/or securities intermediary substantially as set forth on Exhibit B
hereto, (v) provide for survival of such representations; and (vi) do not permit
waiver of such representations and covenants.
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance was less than $20,000,000 or less than 5% of
the aggregate certificate balance of the Certificates as of the date of the
Current Report. The Mortgage Loan is not one of the ten (10) largest loans in
the pool.
13. Copies of all material agreements, instruments, organizational
documents, opinions of counsel, accountant's report and other items delivered in
connection with the defeasance will be provided to you upon request.
14. The individual executing this notice is an authorized officer or
a servicing officer of the Master Servicer.
IN WITNESS WHEREOF, the Master Servicer has caused this notice to be
executed as of the date captioned above.
MIDLAND LOAN SERVICES, INC.:
By:____________________________________
Name:
Title:
EXHIBIT A
Form of Notice and Certification Regarding Defeasance of Mortgage Loan
(List of Exceptions)
EXHIBIT B
Perfected Security Interest Representations
General:
[The defeasance agreements] create a valid and continuing security
interest (as defined in the applicable UCC) in the [Collateral, Securities
Account and Deposit Account] in favor of the [Secured Party], which security
interest is prior to all other [Liens], and is enforceable as such as against
creditors of and purchasers from [Debtor].
Note that "Collateral" means securities, permitted investments and other
assets credited to securities accounts.
The [Deposit Account] constitutes a "deposit account" within the
meaning of the applicable UCC.
All of the [Collateral] has been and will have been credited to a
[Securities Account]. The securities intermediary for the [Securities Account
has agreed to treat all assets credited to the [Securities Account] as
"financial assets" within the meaning of the UCC.
Creation:
[Debtor] owns and has good and marketable title to the [Collateral,
Securities Account and Deposit Account] free and clear of any [Lien], claim or
encumbrance of any Person.
[Debtor] has received all consents and approvals required by the
terms of the [Collateral] to the transfer to the [Secured Party] of its interest
and rights in the [Collateral] hereunder.
Perfection:
[Debtor] has caused or will have caused, within ten (10) days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest granted in the [Collateral, Securities Account and Deposit
Account] to the [Secured Party] hereunder.
[Debtor] has delivered to [Secured Party] a fully executed agreement
pursuant to which the securities intermediary or the account bank has agreed to
comply with all instructions originated by the [Secured Party] relating to the
[Securities Account] or directing disposition of the funds in the [Deposit
Account] without further consent by the [Debtor].
[Debtor] has taken all steps necessary to cause the securities
intermediary to identify in its records the [Secured Party] as the person having
a security entitlement against the securities intermediary in the [Securities
Account].
[Debtor] has taken all steps necessary to cause [Secured Party] to
become the account holder of the [Deposit Account].
Priority:
Other than the security interest granted to the [Secured Party]
pursuant to his Agreement, [Debtor] has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the [Collateral, Securities
Account and Deposit Account]. [Debtor] has not authorized the filing of and is
not aware of any financing statements against [Debtor] that include a
description of collateral covering the [Collateral, Securities Account and
Deposit Account] other than any financing statement relating to the security
interest granted to the [Secured Party] hereunder or that has been terminated.
Debtor is not aware of any judgment or tax lien filings against [Debtor].
EXHIBIT U
INFORMATION REQUEST FORM
Date: [________] [__], 20[__]
[Address of party from
whom information is requested]
Attention: Deutsche Mortgage Asset & Receiving Corporation, Commercial
Mortgage Pass Through Certificates, COMM 2006-C7
In accordance with the Pooling and Servicing Agreement, dated as of June
1, 2006 (the "Agreement"), entered into by Deutsche Mortgage Asset & Receiving
Corporation, as depositor, Midland Loan Services, Inc., as the master servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Master Servicer"), CWCapital Asset Management LLC, as special servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee and paying
agent, with respect to the above referenced certificates (the "Certificates"),
the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class [__] Certificates.
2. The undersigned is requesting from [name of party from whom information is
requested] certain information (the "Information") pursuant to the
provisions of the Agreement.
3. In consideration of the [name of party from whom information is
requested]'s disclosure to the undersigned of the Information, or
access thereto, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making an
evaluation in connection with purchasing the related Certificates, from
its accountants and attorneys, and otherwise from such governmental or
banking authorities or agencies to which the undersigned is subject),
and such Information, will not, without the prior written consent of
[name of party from whom information is requested], be otherwise
disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the
"Representative") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
[name of party from whom information is requested], the Trustee and the
Trust Fund for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any its Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[___________________________________]
Beneficial Owner or Prospective Purchaser
By:__________________________________
Title:_______________________________
Company:_____________________________
Phone:_______________________________
EXHIBIT V
Additional Disclosure Notification
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
XXX.XXX.XXXXXXXXXXXXX@XXXXXXXXXX.XXX AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Trustee
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services - [DEAL NAME]--SEC REPORT PROCESSING
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [_] of the Pooling and Servicing
Agreement, dated as of June 1, 2006, among Deutsche Mortgage Asset & Receiving
Corporation, as depositor, Midland Loan Services, Inc., as the master servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Master Servicer"), CWCapital Asset Management LLC, as special servicer
with respect to all of the Mortgage Loans other than the Desert Passage Loan
(the "Special Servicer") and Xxxxx Fargo Bank, N.A., as trustee and paying
agent, the undersigned, as [__________], hereby notifies you that certain events
have come to our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[ ], phone number: [ ]; email address:
[ ].
[NAME OF PARTY],
as [role]
By:
Name:
Title:
Exhibit W
Loan Seller Sub-Servicers
Master Servicer
Arbor, with respect to the following Mortgage Loans:
o Grand View Apartments
Bank of America, National Association, with respect to the following Mortgage
Loans:
o Desert Passage
o Bon-Ton Department Stores Portfolio
o Granite Run Mall
o Indianapolis North Marriott
o Windsor Lake Apartments
o Lakeview Square Mall
o 000 Xxxxxxxx Xxxxxx
o Verandas at Blairstone
o Inn at Laguna Beach
o Westwind Business Park
o Budco Headquarters
x Xxxxx MHC Portfolio - 3 Terrace Acres
x Xxxxx MHC Portfolio - 6 Lincoln
x Xxxxx MHC Portfolio - 1 Belle Aire
o Thomson Information Services
o 0 Xxxx Xxxxxx
o Holiday Inn Select Memphis
o Wells Fargo Financial Center
o Residence Inn Memphis
o Oakmont Apartments
o Grafco Building
o Radisson Orlando
o Diablo Villas Apartments
o A Self Storage Center
CBRE/Melody, with respect to the following Mortgage Loans:
o Mall of Georgia Shops
o Dallas Shops
x Xxxxx Bridge Shops
o Countryside Office Park
o Grand Slam for Xxxxx Bridge Shops
Collateral Mortgage Capital, with respect to the following Mortgage Loans:
x Xxxxxx Apartments
CWCapital LLC, with respect to the following Mortgage Loans:
o Galleria Corporate Centre
o Marriot Resort Clearwater Beach on Sand Key
o NL Ventures
o Copper Pointe Apartments
o Xxxx Xxxx Medical Center
o Heritage Place
o Crossroads at Citadel
o The Drexel Building
o Dundee Park
GEMSA Loan Services, L.P., with respect to the following Mortgage Loans:
o Tri-Cities Professional Center
GMAC, with respect to the following Mortgage Loans:
o Pearl Court / Midway Estates
Holiday Xxxxxxxx Xxxxxx, X.X., with respect to the following Mortgage Loans:
o Killeen Power Center
Laureate Capital, with respect to the following Mortgage Loans:
o Creekwood Apartments
o Hampton Inn & Suites
Midland Loan Services, Inc., with respect to the following Mortgage Loans:
o Wyoming Industrial Center
North Marq Capital, Inc., with respect to the following Mortgage Loans:
o Securlock at the Colony
o Eagle Point Office Center I
Exhibit X
Loan
Balance Holdback
Control # Property Name (UPB) Amount Holdback Provisions
--------- ------------- ----- ------ -------------------
00 Xxxxxx Xxxxx $30,208,000 $926,000 The holdback is held as
additional security for the
loan unless the borrower
requests redetermination by
April 1, 2008, and Lender
determines that certain
requirements, including a
1.20x DSCR based on a 6.70%
minimum constant, and a
maximum of 80% LTV, have
been satisfied. Borrower
has the right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the
letter of credit for the
term or to apply the letter
of credit to the outstanding
principal loan balance, and
principal and interest
payments are recalculated on
the new loan balance. Any
proceeds for which the
borrower qualifies shall be
released to the borrower,
less any required fees.
--------------------------------------------------------------------------------
34 Verandas at $23,000,000 $800,000 The holdback is held as
Blairstone additional security for the
loan unless the borrower
exercises its one time
option within the first 6
months from closing of the
mortgage loan to request the
release of the holdback
provided that the debt
service coverage ratio at
the time of the request is
1.20x or greater. The
amount of the disbursement
will be equal to an amount
which, when added to the
amount of $22,200,000,
provides for a debt service
coverage ratio of 1.20x as
calculated by the mortgagee
utilizing the net rental
income and expenses for the
prior 3 month period
annualized. If the holdback
release conditions have not
been satisfied within 6
months of the closing date
of the mortgage loan, the
holdback reserve funds will
either at the mortgagee's
sole discretion, be (i)
applied to the outstanding
principal balance of the
mortgage loan and Borrower
will pay to the mortgagee
the required prepayment
premium or (ii) held as
additional collateral for
the mortgage loan.
--------------------------------------------------------------------------------
67 542 Xxxxxxx $12,000,000 $1,650,000 The holdback is being held by
Street the mortgagee as additional
security for the mortgage
loan until the debt service
coverage ratio as determined
by the mortgagee is equal to
or greater than 1.20x and the
mortgaged property maintains
a minimum occupancy rate of
90% for the immediately
trailing twelve (12) months,
provided that such release
may only occur prior to March
24, 2008.
-------------------------------------------------------------------------------
71 530 Xxxxxxx $11,000,000 $1,150,000 The holdback is being held by
Street the mortgagee as additional
security for the mortgage
loan until the debt service
coverage ratio as determined
by the mortgagee is equal to
or greater than 1.20x and the
mortgaged property maintains
a minimum occupancy rate of
90% for the immediately
trailing twelve (12) months,
provided that such release
may only occur prior to March
24, 2008.
--------------------------------------------------------------------------------
76 Xxxxx Fargo $10,500,000 $1,375,000 The holdback is held as
Financial additional security for the
Center loan unless the borrower
exercises its one time option
within the first 6 months
from closing of the mortgage
loan to request the release
of the holdback and Lender
determines that certain
requirements, including, that
there is no Default or Event
of Default and estimated
annual gross income for the
mortgaged property (as
determined by the mortgagee)
is not less than $51,332,933
based on the trailing 1 month
period. The "Holdback Release
Amount" is positive
difference between (i) the
then outstanding principal
balance of the mortgage loan
and (ii) the principal
balance of the mortgage loan
which would support a debt
service coverage ratio (as
determined by the mortgagee
based on actual rents
collected and the greater of
actual or underwritten
expenses with respect to the
mortgaged property for the
trailing 1 month period) of
1.25x. If, following
satisfaction of the foregoing
conditions, the mortgagee
disburses to Borrower less
than all of the holdback
reserve funds or if Borrower
has not fully satisfied the
conditions for a release of
the holdback reserve funds
within the 6 months after the
closing date of the mortgage
loan, then in either case the
mortgagee may in its sole
discretion apply holdback
reserve funds to the loan in
such amounts and in such
manner as the mortgagee may
elect in its sole discretion,
including without limitation,
to the payment of prepayment
premiums or yield maintenance
charges resulting from any
such application. The
mortgagee may, at its sole
election, re-amortize the
mortgage loan to reflect any
such application.
--------------------------------------------------------------------------------
105 Grandview $6,744,000 $357,000 The holdback is held as
Marketplace additional security for the
loan unless the borrower
requests redetermination by
March 1, 2008, and Lender
determines that certain
requirements, including a
1.20x DSCR based on a 6.90%
minimum constant, and a
maximum of 80% LTV, have
been satisfied. Borrower
has the right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the
escrow for the term or to
apply the escrow to the
outstanding principal loan
balance, and principal and
interest payments are
recalculated on the new loan
balance. Any proceeds for
which the borrower qualifies
shall be released to the
borrower, less any required
fees.
--------------------------------------------------------------------------------
000 Xxxxxxxx 5,625,000 $500,000 The holdback is being held by
Plaza the mortgagee as additional
security for the mortgage
loan until such time that,
among other things, (i) the
debt service coverage ratio
as determined by the
mortgagee is equal to or
greater than 1.20x, (ii) the
mortgaged property maintains
a minimum occupancy rate of
96%, as determined by the
mortgagee, (iii) certain
tenants take occupancy, open
for business and commence
rent payments, (iv) certain
landlord obligations are
complete and (v) such release
occurs prior to May 3, 2011.
--------------------------------------------------------------------------------
122 Southside $5,100,000 $515,000 The holdback is held as
Self Storage additional security for the
loan unless the borrower
requests redetermination by
February 28, 2007, and Lender
determines that certain
requirements, including a
1.25x DSCR based on a 7.25%
minimum constant, and a
maximum of 75% LTV, have been
satisfied. Borrower has the
right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the escrow
for the term or apply the
escrow to the outstanding
principal loan balance, with
yield maintenance being
prepaid, and principal and
interest payments are
recalculated on the new loan
balance. Any proceeds for
which the borrower qualifies
shall be released to the
borrower, less any required
fees.
--------------------------------------------------------------------------------
123 Springfield $4,975,000 $740,000 The holdback is held as
Farms additional security for the
loan unless the borrower
requests redetermination by
April 1, 2008, and Lender
determines that certain
requirements, including a
1.20x DSCR based on a 6.75%
minimum constant, and a
maximum of 80% LTV, have been
satisfied. Borrower has the
right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the escrow
for the term or apply the
escrow to the outstanding
principal loan balance, with
yield maintenance being
prepaid, and principal and
interest payments are
recalculated on the new loan
balance. Any proceeds for
which the borrower qualifies
shall be released to the
borrower, less any required
fees.
--------------------------------------------------------------------------------
128 Xxxxxx $4,100,000 $578,000 The holdback is held as
Valley additional security for the
Hayward loan unless the borrower
Storage requests redetermination by
March 31, 2008, and Lender
determines that certain
requirements, including a
1.20x DSCR based on a 7.00%
minimum constant, and a
maximum of 80% LTV, have been
satisfied. Borrower has the
right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the escrow
for the term or to apply the
escrow to the outstanding
principal loan balance, with
yield maintenance being
prepaid, and principal and
interest payments are
recalculated on the new loan
balance. Any proceeds for
which the borrower qualifies
shall be released to the
borrower, less any required
fees.
--------------------------------------------------------------------------------
135 Xxxxxx Center $3,600,000 $209,000 The holdback is held as
additional security for the
loan unless the borrower
requests redetermination by
April 1, 2008, and Lender
determines that certain
requirements, including a
1.25x DSCR based on a 6.80%
minimum constant, and a
maximum of 75% LTV, have
been satisfied. Borrower
has the right to request two
redeterminations. If the
borrower does not qualify or
only partially qualifies for
the release, the Lender has
the option to hold the
escrow for the term or to
apply the escrow to the
outstanding principal loan
balance, with yield
maintenance being prepaid,
and principal and interest
payments are recalculated on
the new loan balance. Any
proceeds for which the
borrower qualifies shall be
released to the borrower,
less any required fees.
Exhibit Y
FORM OF DEPOSITOR CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Deutsche Mortgage and Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates
Series COMM 2006-C7 (the "Trust")
I, [identify the certifying individual], a [title] of Deutsche
Mortgage and Asset Receiving Corporation, the depositor into the
above-referenced Trust, certify that:
(a) I have reviewed this annual report on Form 10-K, and all reports
Form 10-D required to be filed in respect of periods included in the year
covered by this annual report, of the Trust;
(b) Based on my knowledge, the Exchange Act periodic reports, taken
as a whole, do not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in light
of the circumstances under which such statements were made, not misleading
with respect to the period covered by this annual report;
(c) Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period
covered by this report is included in the Exchange Act periodic reports;
(d) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act periodic report, the servicers have
fulfilled their obligations under the pooling and servicing agreement; and
(e) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Midland Loan Services,
Inc., CWCapital Asset Management LLC, Xxxxx Fargo Bank, N.A. and [list any
sub-servicers]
Date:___________________________
[______________________]
Deutsche Mortgage and Asset Receiving Corporation.
SCHEDULE I
CLASS A-AB PLANNED PRINCIPAL BALANCE SCHEDULE
Date Period Balance
7/10/2006 1 $98,824,000
8/10/2006 2 $98,824,000
9/10/2006 3 $98,824,000
10/10/2006 4 $98,824,000
11/10/2006 5 $98,824,000
12/10/2006 6 $98,824,000
1/10/2007 7 $98,824,000
2/10/2007 8 $98,824,000
3/10/2007 9 $98,824,000
4/10/2007 10 $98,824,000
5/10/2007 11 $98,824,000
6/10/2007 12 $98,824,000
7/10/2007 13 $98,824,000
8/10/2007 14 $98,824,000
9/10/2007 15 $98,824,000
10/10/2007 16 $98,824,000
11/10/2007 17 $98,824,000
12/10/2007 18 $98,824,000
1/10/2008 19 $98,824,000
2/10/2008 20 $98,824,000
3/10/2008 21 $98,824,000
4/10/2008 22 $98,824,000
5/10/2008 23 $98,824,000
6/10/2008 24 $98,824,000
7/10/2008 25 $98,824,000
8/10/2008 26 $98,824,000
9/10/2008 27 $98,824,000
10/10/2008 28 $98,824,000
11/10/2008 29 $98,824,000
12/10/2008 30 $98,824,000
1/10/2009 31 $98,824,000
2/10/2009 32 $98,824,000
3/10/2009 33 $98,824,000
4/10/2009 34 $98,824,000
5/10/2009 35 $98,824,000
6/10/2009 36 $98,824,000
7/10/2009 37 $98,824,000
8/10/2009 38 $98,824,000
9/10/2009 39 $98,824,000
10/10/2009 40 $98,824,000
11/10/2009 41 $98,824,000
12/10/2009 42 $98,824,000
1/10/2010 43 $98,824,000
2/10/2010 44 $98,824,000
3/10/2010 45 $98,824,000
4/10/2010 46 $98,824,000
5/10/2010 47 $98,824,000
6/10/2010 48 $98,824,000
7/10/2010 49 $98,824,000
8/10/2010 50 $98,824,000
9/10/2010 51 $98,824,000
10/10/2010 52 $98,824,000
11/10/2010 53 $98,824,000
12/10/2010 54 $98,824,000
1/10/2011 55 $98,824,000
2/10/2011 56 $98,824,000
3/10/2011 57 $98,824,000
4/10/2011 58 $98,824,000
5/10/2011 59 $98,824,000
6/10/2011 60 $98,823,856
7/10/2011 61 $96,454,000
8/10/2011 62 $94,354,000
9/10/2011 63 $92,244,000
10/10/2011 64 $89,842,000
11/10/2011 65 $87,709,000
12/10/2011 66 $85,285,000
1/10/2012 67 $83,129,000
2/10/2012 68 $80,962,000
3/10/2012 69 $78,226,000
4/10/2012 70 $76,029,000
5/10/2012 71 $73,542,000
6/10/2012 72 $71,340,000
7/10/2012 73 $68,849,000
8/10/2012 74 $68,749,000
9/10/2012 75 $68,649,000
10/10/2012 76 $68,549,000
11/10/2012 77 $68,449,000
12/10/2012 78 $68,349,000
1/10/2013 79 $68,249,000
2/10/2013 80 $68,149,000
3/10/2013 81 $68,049,000
4/10/2013 82 $67,948,888
5/10/2013 83 $65,374,000
6/10/2013 84 $62,996,000
7/10/2013 85 $60,291,000
8/10/2013 86 $57,856,000
9/10/2013 87 $55,409,000
10/10/2013 88 $52,667,000
11/10/2013 89 $50,194,000
12/10/2013 90 $47,426,000
1/10/2014 91 $44,927,000
2/10/2014 92 $42,415,000
3/10/2014 93 $39,047,000
4/10/2014 94 $36,505,000
5/10/2014 95 $33,670,000
6/10/2014 96 $31,102,000
7/10/2014 97 $28,241,000
8/10/2014 98 $25,645,000
9/10/2014 99 $23,035,000
10/10/2014 100 $20,135,000
11/10/2014 101 $17,498,000
12/10/2014 102 $14,571,000
1/10/2015 103 $11,906,000
2/10/2015 104 $9,227,000
3/10/2015 105 $5,708,000
4/10/2015 106 $2,998,000
5/10/2015 107 $ 432.5669
Schedule II
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria" (with each
Servicing Function Participant deemed to be responsible for the items applicable
to the functions it is performing and for which the party that retained such
Servicing Function Participant is responsible):
------------------------------------------------------------------------------------------------------------------------
Relevant Servicing Criteria Applicable
Party(ies)
------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------- ------------------------------------------------------------------------------- -------------------
General Servicing Considerations
-------------------- ------------------------------------------------------------------------------- -------------------
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Trustee
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Trustee
policies and procedures are instituted to monitor the third party's Master Servicer
performance and compliance with such servicing activities. Special Servicer
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Master Servicer
participating in the servicing function throughout the reporting period in Special Servicer
the amount of coverage required by and otherwise in accordance with the terms
of the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
Cash Collection and Administration
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank Trustee
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Trustee
investor are made only by authorized personnel.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
made, reviewed and approved as specified in the transaction agreements. Trustee
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Trustee
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Trustee
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a Special Servicer
foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Trustee
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed Trustee
securities related bank accounts, including custodial accounts and related Master Servicer
bank clearing accounts. These reconciliations are (A) mathematically Special Servicer
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
Investor Remittances and Reporting
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Trustee
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Master Servicer.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Trustee
timeframes, distribution priority and other terms set forth in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Trustee
Master Servicer's investor records, or such other number of days specified in
the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Trustee
checks, or other form of payment, or custodial bank statements.
-------------------- ------------------------------------------------------------------------------- -------------------
Pool Asset Administration
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements. Special Servicer
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed Trustee
and approved in accordance with any conditions or requirements in the Special Servicer
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with Master Servicer
the related mortgage loan documents are posted to the Master Servicer's
obligor records maintained no more than two business days after receipt, or
such other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(v) The Master Servicer's records regarding the mortgage loans agree with the Master Servicer
Master Servicer's records with respect to an obligor's unpaid principal
balance.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Special Servicer
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to the obligor's error or
omission.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
-------------------- ------------------------------------------------------------------------------- -------------------
SCHEDULE III
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.6 of the Pooling and Servicing Agreement to
disclose to the Depositor and the Trustee any information described in the
corresponding Form 10-D Item described in the "Item on Form 10-D" column to the
extent such party has actual knowledge (and in the case of financial statements
required to be provided in connection with Item 6 below, possession) of such
information (other than information as to itself).
------------------------------------------------ ---------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------ ---------------------------------------------------
Distribution and Pool Performance Information: o Master Servicer (only with respect to
o Only with respect to any information 1121(a)(12) as to non Specially Serviced
required by 1121 which is NOT included Loans)
on the Distribution Date Statement o Special Servicer (only with respect to
1121(a)(12) as to Specially Serviced
Loans)
o Depositor
o Trustee
------------------------------------------------ ---------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB (to the o Special Servicer (as to itself)
extent material to Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Any other Reporting Servicer (as to
itself)
o Trustee/ Master
Servicer/Depositor/Special Servicer as to
the Trust (in the case of the Master
Servicer and the Special Servicer to be
reported by the party controlling such
litigation pursuant to Section 3.35)
o Each Mortgage Loan Seller (to be provided
by the Depositor)
o Originators under Item 1110 of Regulation
AB (to be provided by the Depositor)
o Party under Item 1100(d)(1) of Regulation
AB (to be provided by the Depositor)
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Item 3: Sale of Securities and Use of Proceeds o Depositor
------------------------------------------------ ---------------------------------------------------
Item 4: Defaults Upon Senior Securities o Trustee
------------------------------------------------ ---------------------------------------------------
Item 5: Submission of Matters to a Vote of o Trustee
Security Holders
------------------------------------------------ ---------------------------------------------------
Item 6: Significant Obligors of Pool Assets N/A
------------------------------------------------ ---------------------------------------------------
Item 7: Significant Enhancement Provider N/A
Information
------------------------------------------------ ---------------------------------------------------
Item 8: Other Information (information o Any party responsible for disclosure
required to be disclosed on Form 8-K that was items on Form 8-K to the extent of such
not properly disclosed) items
------------------------------------------------ ---------------------------------------------------
Item 9: Exhibits o Depositor (exhibits required by Item 601
of Regulation S-K, such as material
agreements)
o Trustee (Monthly Statement to
Certificateholders)
------------------------------------------------ ---------------------------------------------------
SCHEDULE IV
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.7 of the Pooling and Servicing Agreement to
disclose to the Depositor and the Trustee any information described in the
corresponding Form 10-K Item described in the "Item on Form 10-K" column to the
extent such party has actual knowledge (and in the case of financial statements
required to be provided in connection with 1112(b) below, possession) of such
information (other than information as to itself).
------------------------------------------------ ----------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------ ----------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
------------------------------------------------ ----------------------------------------------------
Item 9B: Other Information (information o Any party responsible for disclosure items
required to be disclosed on Form 8-K that was on Form 8-K to the extent of such items
not properly disclosed)
------------------------------------------------ ----------------------------------------------------
Item 15: Exhibits, Financial Statement o Trustee
Schedules o Depositor
------------------------------------------------ ----------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB (to o Special Servicer (as to itself)
the extent material to Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/ Master Servicer/Depositor/Special
Servicer as to the Trust (in the case of
the Master Servicer and the Special
Servicer to be reported by the party
controlling such litigation pursuant to
Section 3.35)
o Each Mortgage Loan Seller (to be provided
by the Depositor)
o Originators under Item 1110 of Regulation
AB (to be provided by the Depositor)
o Party under Item 1100(d)(1) of Regulation
AB (to be provided by the Depositor)
------------------------------------------------ ----------------------------------------------------
Additional Item: o Master Servicer (as to itself) (to the
Disclosure per Item 1119 of Regulation AB extent material to Certificateholders and
only as to affiliations under 1119(a) with
the Trustee, Special Servicer or a
sub-servicer meeting any of the
descriptions in Item 1108(a)(3))
o Special Servicer (as to itself) (to the
extent material to Certificateholders and
only as to affiliations under 1119(a) with
the Trustee, Master Servicer or a
sub-servicer meeting any of the
descriptions in Item 1108(a)(3))
o Trustee (as to itself) (to the extent
material to Certificateholders)
o Depositor (as to itself)
o Depositor (as to the Trust)
o Each Mortgage Loan Seller (to be provided
by the Depositor) (as to itself)
o Originators under Item 1110 of Regulation
AB (to be provided by the Depositor)
o Party under Item 1100(d)(1) of Regulation
AB (to be provided by the Depositor)
------------------------------------------------ ----------------------------------------------------
Additional Item: N/A
Disclosure per Item 1112(b) of Regulation AB
------------------------------------------------ ----------------------------------------------------
Additional Item:
Disclosure per Items 1114(b)(2) and 1115(b) of N/A
Regulation AB
------------------------------------------------ ----------------------------------------------------
SCHEDULE V
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.9 of the Pooling and Servicing Agreement to
report to the Depositor and the Trustee the occurrence of any event described in
the corresponding Form 8-K Item described in the "Item on Form 8-K" column to
the extent such party has actual knowledge of such information (other than
information as to itself).
------------------------------------------------ ---------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1.01- Entry into a Material Definitive o Trustee/ Master
Agreement Servicer/Depositor/Special Servicer
as to the Trust (only as to the
Disclosure is required regarding entry into or agreements such entity is a party
amendment of any definitive agreement that is to or entered into on behalf of the
material to the securitization, even if Trust)
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the
prospectus
------------------------------------------------ ---------------------------------------------
Item 1.02- Termination of a Material o Trustee/ Master
Definitive Agreement Servicer/Depositor/Special Servicer
as to the Trust (only as to the
Disclosure is required regarding termination agreements such entity is a party
of any definitive agreement that is material to or entered into on behalf of the
to the securitization (other than expiration Trust)
in accordance with its terms), even if
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
------------------------------------------------ ---------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
------------------------------------------------ ---------------------------------------------
Item 2.04- Triggering Events that Accelerate o Depositor
or Increase a Direct Financial Obligation or o Trustee
an Obligation under an Off-Balance Sheet
Arrangement
Includes an early amortization, performance
trigger or other event, including event of
default, that would materially alter the
payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
monthly statements to the certificateholders.
------------------------------------------------ ---------------------------------------------
Item 3.03- Material Modification to Rights of o Trustee
Security Holders
Disclosure is required of any material
modification to documents defining the rights
of Certificateholders, including the Pooling
and Servicing Agreement.
------------------------------------------------ ---------------------------------------------
Item 5.03- Amendments of Articles of o Depositor
Incorporation or Bylaws; Change of Fiscal Year
Disclosure is required of any amendment "to
the governing documents of the issuing entity".
------------------------------------------------ ---------------------------------------------
Item 6.01- ABS Informational and Computational o Depositor
Material
------------------------------------------------ ---------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer (as to itself or a
servicer retained by it)
Requires disclosure of any removal, o Special Servicer (as to itself or a
replacement, substitution or addition of any servicer retained by it)
master servicer, affiliated servicer, other o Trustee
servicer servicing 10% or more of pool assets o Depositor
at time of report, other material servicers or
trustee.
------------------------------------------------ ---------------------------------------------
Reg AB disclosure about any new servicer or o Master Servicer or Special
master servicer is also required. Servicer, as applicable
------------------------------------------------ ---------------------------------------------
Reg AB disclosure about any new Trustee is o Trustee
also required.
------------------------------------------------ ---------------------------------------------
Item 6.03- Change in Credit Enhancement or N/A
External Support
------------------------------------------------ ---------------------------------------------
Item 6.04- Failure to Make a Required o Trustee
Distribution
------------------------------------------------ ---------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
If any material pool characteristic differs by
5% or more at the time of issuance of the
securities from the description in the final
prospectus, provide updated Reg AB disclosure
about the actual asset pool.
If there are any new servicers or originators
required to be disclosed under Regulation AB
as a result of the foregoing, provide the
information called for in Items 1108 and 1110
respectively.
------------------------------------------------ ---------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
------------------------------------------------ ---------------------------------------------
Item 8.01 - Other Events o Depositor
Any event, with respect to which information
is not otherwise called for in Form 8-K, that
the registrant deems of importance to
certificateholders.
------------------------------------------------ ---------------------------------------------
Item 9.01 - Financial Statements and Exhibits o Responsible party for
reporting/disclosing the financial
statement or exhibit
------------------------------------------------ ---------------------------------------------
